May 11, 2025

By Stephen Stofka

This is part of a series on persistent problems. The conversations are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel looked across the restaurant at a family seated around several tables. “I wonder why the kid is dressed in white.”

Cain turned to look. “Oh, yeah. First Communion, maybe? I think it’s that time of year.”

Abel spread some honey on his toast. “Last week, we were talking about charter schools. A few days later, I was listening to a Supreme Court case about a charter school in Oklahoma” (Source).

Cain asked, “What do you mean listen to?”

Abel replied, “Lawyers for both sides argue their case in front of the Supreme Court and the justices ask them questions. ‘Oral arguments,’ it’s called (Source).”

Cain nodded. “I know about oral arguments. I didn’t know they were broadcast.”

Abel finished chewing. “They started that in the pandemic, I think. If you subscribe to the Oyez podcast, you can listen to it a day or two after the argument. Their web site has a lot on past court cases (Source). There’s also a link on the Supreme Court’s web site where we can listen to them live (Source).”

Cain asked, “So what was the case about?”

Abel said, “Oklahoma has a state charter board that approves or denies applications to become charter schools. A few years ago, the state board approved an application for a Catholic charter school named St. Isidore, allowing them to freely follow their religious beliefs.”

Cain interrupted, “Wait. I thought charter schools were publicly funded by taxpayer dollars. What about separation of church and state?’

Abel nodded. “That’s what the state attorney general wondered.”

Cain asked, “A Democrat? I thought Oklahoma was fairly red.”

Abel shook his head. “No, a Republican. The AG’s office brought the case to the state’s Supreme Court, arguing that the charter should be nullified. The court agreed. Both the school and the state’s chartering board brought the case before the federal Supreme Court, where the two cases got joined together.”

Cain raised his eyebrows in mock drama. “So one state agency, the AG, is pitted against another state agency, the charter board.”

Abel laughed. “And there’s some political machinations on the court.”

Cain twirled an imaginary moustache. “Politics on the Supreme Court? Surely, you jest, my man!”

Abel smiled. “Justice Barrett, one of the conservative justices, recused herself from the case so there are just eight justices, a five to three split between conservatives and liberals. If the three liberal justices can bring Chief Justice Roberts to their side, the decision would result in a 4-4 tie, which would let the Oklahoma Supreme Court decision stand.”

Cain asked, “So what are the issues both sides are fighting over?”

Abel put his coffee cup down. “Before I get to that, let me get back to the politics. So the justices direct their questions to the lawyers for either side, but the questions are designed to bring up points that the conservatives and liberals think are important to their argument.”

Cain replied, “Indirectly steering the debate as the justices hope to sway Roberts.”

Abel smiled. “Yeah. So the liberals focus on the establishment clause in the First Amendment that prevents the government from favoring one religion over another.”

Cain looked puzzled. “I thought charter schools were private.”

Abel replied, “They are, but they are publicly funded, and they have to follow the same rules as other public schools. They can’t choose which students they admit.”

Cain interrupted, “We talked about that last week. The schools are not supposed to do that. Some states are rather lax in how they enforce that rule.”

Abel nodded. “Good reminder. The school has to get approval for their curriculum, and the state closely monitors the school to make sure that it meets the state’s requirements. The state may even have a representative on the charter school’s board. Plus, the state can close the school down. Even though the school is private, the state has a lot of control.”

Cain said, “Reminds me of the debate over independent contractor status. If XYZ company hires someone to do a job, and XYZ has substantial direction and control of how that person performs the work, then that person is an employee, not an independent contractor. XYZ company has to pay employer taxes for whatever money they pay that person.”

Abel nodded. “That’s a good point. It’s the familiar ‘if it quacks like a duck’ argument. So the plaintiffs for the state chartering board and St. Isidore, the charter school, stressed the private ownership of the school, religious freedom and free expression. The respondents, the AG’s office, focused on the control that the state has over St. Isidore and that control makes them an extension of state legitimacy and power.”

Cain looked surprised. “I agree with the AG’s office.”

Abel replied, “I think it’s a case of which precedent do you think should carry the most weight. The conservative justices focused on the equal protection clause of the 14^th Amendment (Source). A charter school must meet minimum curriculum requirements. One of the lawyers said the state even specifies that dangling participles must be taught in English class. But the school can have a focus like science, the arts, or on Chinese language skills, offering some language immersion classes.

Cain interrupted, “That shows how much control the state has. So what was the counter argument from the conservative justices?

Abel replied, “I think it was Kavanaugh who expressed concern about equal treatment. Each charter school can have a different focus, but if a school has a religious focus, that’s unconstitutional?”

Cain tilted his head slightly. “Ok, good point. An American history teacher at St. Isidore could stress Christian principles as fundamental ideas to the founders who wrote the Constitution. If that teacher cited some Bible verses to illustrate those principles, is that legal? The teacher is paid with public taxpayer dollars. Is the government promoting one religion over another?”

Abel argued, “Michael Klarman wrote a book on the founding called Framer’s Coup. At the beginning of the introduction, he cites Madison and Benjamin Rush referring to an ‘Almighty hand’ or the ‘hand of God’ (Source).”

Cain looked skeptical. “Yeah, but they weren’t referring to a specific religion, or even a broad category like Christianity.”

Abel said, “Should a school teacher in a publicly funded institution cite any religion? If the Supreme Court decides that the state can charter religious schools, where does it stop? What if a teacher cited the Koran as embodying the founding principles of the American Constitution?”

Cain smirked. “Not a lot of Muslims in Oklahoma. I could see where Catholics and Protestants would get into a war over this issue. Catholic teaching would stress the Federalist view of government at the founding. More centralized and authoritarian, the one championed by Hamilton. Protestant teaching would stress the anti-Federalist view associated with Jefferson. Decentralized power, more autonomy at the local level.”

Abel argued, “But both of those views could be taught without referencing back to the Bible or the Koran. Religious traditions provoke too much dissent and violence. The founders wanted to stress constitutional principles that bound the thirteen colonies together, not tore them apart. The European powers were already trying to do that. In Federalist #10, Madison noted the conflict of political factions with differing regional interests (Source). He hoped that the Constitution would balance the tension between national and local interests.”

Cain nodded. “Getting back to the issues involved, you’re saying it’s the First against the Fourteenth? The conservative justices and the Catholic charter school use the 14^th Amendment to justify their opinion. Liberal justices and the state’s AG office base their arguments on the 1^st Amendment.”

Abel smiled. “It’s more complicated. The conservative justices also focused on the free exercise clause in the First Amendment. The Supreme Court has long struggled with the balance between the establishment clause and the free exercise clause (Source). An individual’s free exercise cannot conflict with state interests like public safety and health. As long as a school meets the curriculum requirements, it has satisfied other state interests. Is it not entitled to express its views? If other charter schools can focus on climate change and environmental science, why can’t a school express its religious views?”

Cain sighed. “So the First and the Fourteenth Amendments are bound together in a way.”

Abel nodded. “Remember that in 2015’s Obergefell case, a conservative court decided that same sex couples had a right to marry (Source). Equal protection. That decision angered some conservative religious groups. The conservative justices seem to favor that combination of equal protection and free exercise over a state’s interest in remaining religiously neutral. I think Alito mentioned the Masterpiece Cake Shop case.”

Cain replied, “Yeah, the owner of the shop didn’t want to make a custom cake for a gay couple’s wedding. Against his religious beliefs, he said. The state said he had to serve the public and couldn’t discriminate against a customer because of his religious beliefs. The Colorado Supreme Court agreed. The federal Supreme Court overruled and said that a custom made cake was a form of expression protected under the First Amendment (Source).”

Abel argued, “Yeah, but the state did not fund the cake shop with taxpayer dollars. Alito sees only the context that will support his judicial instincts. He wrote the Dobbs decision overturning Roe, reasoning that the Constitution did not give a woman a right to an abortion because it was not deeply rooted in American tradition (Source). His ‘reasoning’ conveniently left out the fact that the Constitution as written in the 18^th and 19^th centuries gave women few rights. They were subservient to men. That’s the bubble of reason that Alito lives in.”

Cain sighed. “Well, remember that he’s writing the majority opinion, so its not just his reasoning.”

Abel shook his head. “Basing decisions on ‘history and tradition’ is flawed. It invites the justices to pick and choose only the history and tradition that supports their biases.”

Cain laughed. “Boy, we could spend a few days on that topic. I do think that the conservative justices are opening a can of worms on this one. If they are going to allow states to charter publicly funded religious schools, some state charter board is going to discriminate against a particular religion. The board will cover their tracks for sure, claiming that the applicant did not meet the state’s curriculum requirements. The applicant will file a lawsuit, claiming religious discrimination. This is an activist court issuing decisions based on unclear reasoning.”

Abel interrupted, “Unclear reasoning. You are being generous.”

Cain shrugged. “The lower courts don’t know how to apply that reasoning. Inevitably, more cases will come to the court, and it will clarify its reasoning.”

Abel smirked. “This court will be dominated by this kind of thinking for decades to come. Anyway, let’s move on from court stuff. Last week, we were talking about problems in education. One of the problems we didn’t discuss is the expectations of parents. Mom and dad might expect school instruction for their child to have the same elements as when they went to school. Like multiplication tables in grammar school or some in high school who had to memorize a poem by Shakespeare.”

Cain nodded. “Well, I thought it was reassuring that they are still teaching dangling participles. There was much more focus on rote learning when we were going to school.”

Abel continued, “That rote learning helped kids learn some basic job skills, like how to make change. Today, some might argue that kids rely on the cash register or the computer to do the math for them so why should kids learn basic math skills? I’d argue that, without those basic skills like percentages and such, kids will become easy prey when they grow up. People can dazzle them with fancy figures that they can’t follow and sell them financial products that hurt rather than help them.”

Cain laughed. “They will ask ChatGPT for financial advice, I suppose. They’ll become like the society in the movie ‘Wall-E’ where they are totally reliant on machines for everything. But what kid thinks about investments? That’s far in the future.”

Abel argued, “Maybe at a very young age, you’re right. A month from now is a long time in a young kid’s mind. But there have been good experiments with high schoolers managing stock portfolios.”

Cain replied, “Goes to show that incentives matter. In the search for YouTube subscribers, a kid will rip a favorite album and upload it to YouTube, complete with notes and navigation to each track in the album. The kid will see little money for all that effort because the recording artist will monetize any ad revenue, but just the prospect of getting more subscribers gets the kid to spend that time and effort. We need to apply those lessons to school learning.”

Abel looked doubtful. “Look, there’s stages in brain development. At the risk of herding kids to learn the same thing at the same time, we can’t be teaching calculus to sixth graders.”

Cain argued, “We had our daughter in Montessori school for a few years. She was in a classroom with kids of different ages. She was about seven and heard about fractions, told the teacher she wanted to learn about them and the teacher had one of the older girls show her fractions. We need more innovative teaching methods, not rigid curriculum.”

Abel shook his head. “Some kids really struggle with fractions and decimals and need to be taught by someone with more experience. You know, someone who knows different approaches to help them understand. The fault of ‘new math’ when it was taught in the 1970s and 80s was trying to teach kids about rules and how they affect relationships between numbers. It was too abstract for a lot of kids.”

Cain was equivocal. “Well, there were also kids who were good at memorizing. They had memorized that three-eighths was less than a half without really understanding the concept. I remember one kid in fourth grade, I think. To add two fractions, he cross multiplied them even when they had the same base.”

Abel cocked his head. “What do you mean?”

Cain replied, “Like two-fourths plus one-fourth. He didn’t need to find a common denominator and cross multiply because the two fractions already have the same base, which is four. The kid had found that the cross-multiplication procedure got the right answer, so he used that all the time.”

Abel looked puzzled. “What if the problem involved adding a whole number and a fraction, like four plus a half.”

Cain smiled. “He would convert the whole number to a fraction, like make four into a fraction of four over 1, then go through his procedure. He was so resistant when I tried to show him any method that was quicker. ‘I might get the wrong answer,’ he told me.”

Abel lifted an eyebrow. “You know, I’ll bet a lot of people carry that approach into their adulthood. They resist change, new methods of doing things, or new arguments. If we looked closely, we’d probably see that same rigid approach at parent-teacher conferences and city council meetings.”

Cain laughed. “Or on the Supreme Court. Using the same kind of reasoning in two cases that have critical differences. Some justices ignore the different principles involved, brushing the differences aside as unimportant.”

Abel smiled. “Different species of animal tend to follow a well-worn path in the forest, even if there has been some change to the landscape and there is an easier path down to the river, for instance. Do they take the easier path? No. They use the same rule.”

Cain asked, “How do we teach kids that different rules apply in different circumstances? That’s what English and math are all about. That’s the importance of learning a foreign language. We become aware that other languages have different rules than our native language. It makes us more aware of the rules that structure our native language.”

Abel asked, “So what about a public school teaching comparative religions? The kids would learn that each religion has different beliefs, customs and rules for interpreting our relationship with the infinite, our own mortality, and the society around us. Could a public school teach both Islam and Catholicism?”

Cain looked puzzled. “What about the Jewish faith? Or Evangelical beliefs? A good background in comparative religions is a lot to ask of a 4th grade teacher. I still think that the state needs to steer clear of funding religious instruction.”

Abel sighed. “I think this decision will be important. Last week, you mentioned that a third of Rochester’s public schools are charter. One of the lawyers arguing at the Supreme Court mentioned that all of New Orleans public schools are charter (Source). The state, as a whole, has only 11% charter schools, but it’s a growing constituency (Source).”

Cain laid his napkin on the table next to his plate. “Sometimes I think that these problems persist because we hold onto conflicting principles. We want schools to be like a Swiss army knife, a multi-tool that addresses several problems and we can’t agree on priorities. We want people to be housed but we want to preserve the character of our neighborhoods and that makes it difficult to build affordable housing. We want the state to stay out of religion, but we want to preserve free speech and religious freedom.”

Abel nodded. “Maybe that’s the most persistent problem of all. It’s like we’re sitting on a wagon being pulled by two horses and we have no reins to guide the horses. Hey, I see you’re ready to go. Maybe we could talk about that next week.”

Cain laughed as he stood. “I like that horse analogy. My treat this week. See you next week.”

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Image by ChatGPT in response to the prompt: “draw an image of two ghosts styled like Casper the Ghost getting ready to have a boxing match.”