A Wall in Ruins: What Drummond Reveals About the Future of the Establishment Clause and Public Education

Abstract

In May 2025, the Supreme Court announced a split 4-4 decision in Oklahoma Charter School Board v. Drummond, a case regarding the constitutionality of creating religious charter schools under the First Amendment. Over the last few decades, the Court has continuously shifted away from providing a separation of church and state protection under the guise of expanding religious liberty through the Free Exercise Clause. This case comes at a time when we have seen the Roberts Court accelerating this trend. Given the split decision, Drummond provides a unique opportunity to dissect a case of this nature, at a time of increasing pressure to accommodate or promote religion in public education. This paper seeks to explain how Drummond should have been decided and why religious charter schools are inherently incompatible with the separation of church and state by analyzing the role of charter schools in the provision of public education and exploring landmark Establishment Clause cases. In doing so, it will determine what the Court’s deadlock and departure from the normative approach to the relationship between religion and public education signifies for the future of the Establishment Clause and our public schools.

I. Introduction

In 1947, Justice Hugo Black delivered the opinion of the Court in Everson v. Board of Education, famously writing that the chief purpose of the Establishment Clause was to erect “a wall of separation between church and state,” one that “must be kept high and impregnable.”¹ These words reflect how public schools in the United States once stood as an archetype of the secular state—institutions intended for the promotion of civic equality and the free-flowing dissemination of knowledge and ideas. However, in the modern day this ideal is eroding. In the last few decades, key Supreme Court rulings have gradually whittled away at the barrier between religion and public education through limiting existing case law standards and granting exceptions that puncture this wall. This deterioration has only accelerated in recent years, with the Roberts Court largely disregarding the Establishment Clause in favor of a maximalist approach to the Free Exercise Clause.² Under the guise of protecting an individual’s right to religious exercise and instruction, the Court has invited the encroachment of religion into state affairs. The next few years will be pivotal in determining if this trend continues and to what extent.

One of the most important contemporary Supreme Court cases pertaining to the role of religion in public education came just recently in 2025—Oklahoma Statewide Charter School Board v. Drummond.³ This case arose from an attempt in Oklahoma to create what was essentially the nation’s first religious charter school. Charter schools in Oklahoma, and virtually every state, are private entities that operate as publicly funded schools through contracts directly or indirectly with the state. In 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Oklahoma Statewide Charter School Board to form St. Isidore of Seville Catholic Virtual School. St. Isidore would function as an online K–12 charter school with Catholic religious instruction incorporated into its curriculum. The Board approved the school’s application and granted them a charter, in which standard provisions requiring charter schools to be nonsectarian were omitted, allowing special permission for religious instruction. Oklahoma Attorney General Gentner Drummond filed a writ of mandamus directly with the Oklahoma Supreme Court, challenging the validity of the contract. He demanded that the Board rescind the contract on the grounds that it violated both state and federal law. The Oklahoma Supreme Court ruled in his favor, citing multiple violations of state law, but more notably reasoning that the establishment of religious charter schools violates both the Establishment Clause and the Free Exercise Clause. The Board and St. Isidore then subsequently filed a petition for certiorari with the Supreme Court.

As important as this case was, it flew under the radar for many as a result of the ruling: a 4-4 equally divided Court affirming the judgment of the Oklahoma Supreme Court.⁴ Chief Justice John Roberts sided with the liberal justices on the Court, meanwhile Justice Barrett recused herself from the case, citing conflict of interest concerns.⁵ In an unusual decision, the Court issued only a one sentence per curiam opinion with no written dissenting opinions. Despite this mysticism, the deadlock of the Court provided a rare opportunity to preview what is to come. We can expect that another case regarding the constitutionality of creating religious charter schools will arise, given the push for religious education across the country, and next time it is unlikely that there will be another recusal. In light of this, Drummond can serve as an exercise on how to dissect a case of this nature because it exists at the intersection of two overarching trends, namely state efforts to expand school choice and increasing pressure to accommodate or promote religion in public education. A ruling on this issue would carry substantial implications for the definition of “public” education, the limits of state neutrality toward religion, and the permissible scope of government funding for faith-based institutions. This case highlights the modern day clashing between religious liberty and the separation of church and state that is now becoming a core consideration in education policy nationwide. Upon any level of critical examination, it is abundantly clear that religious charter schools are wholly incompatible with the separation of church and state. So much so, that the true value in Drummond lies beyond the reasoning in a hypothetical ruling, and more so with the implications that this case has for the future survival of the Establishment Clause in public education.

II. The Role of Charter Schools in Public Education

To analyze this case, one must first understand how public education exists in relation to the state. The provision of accessible public education has always been “perhaps the most important function of state and local governments.”⁶ Every resident of the United States has a reasonable expectation that their local governments will ensure access to adequate public education through the secondary level—just as they can expect access to other fundamental public services such as a fire department and transportation infrastructure. This expectation is rooted in the common belief that education constitutes a public good that is essential to the preservation and achievement of democratic society. Besides its value in furthering the advancement of human knowledge and creating a more economically productive society, public education crucially acts as the primary avenue for cultivating informed residents capable of participating meaningfully in civic life. As such, the state’s duty to maintain equitable and accessible educational institutions is not only grounded in the Constitution, but also a normative commitment to upholding the ideals of democratic society and the common welfare of all people within its borders. It is this aspect that differentiates the provision of public education from most other duties of the state, and in turn signifies the responsibility and caution that must be exercised when discharging this core duty.

In recent years, states have increasingly entrusted charter schools as a means of discharging their duty to provide access to public education. Though the processes vary by state, charters are typically granted to a charter school following the approval of their application by a chartering authority (i.e., local school district, state education department, or independent charter board). As of 2025, 46 states and D.C. have existing charter school laws.⁷ Though charter schools are bound by the terms of their charter and publicly funded, they differ from typical public schools in that private management allows for more flexibility with regard to curriculum and overall structure. As such, the typical rationale given for the establishment of charter schools is to provide additional choice and the potential for innovation in public education. While the debate on the efficacy of charter schools has been quite divisive, increased reliance of states on charter schools to discharge their educational duties has also led to the emergence of the debate regarding whether charter schools can be considered state actors. However, as case law demonstrates, a charter school is produced through state action and certainly functions as a state actor, at least to the extent relevant in Drummond.

IIa. Charter Schools are Established as Public Schools by the State

It is widely accepted that states operate charter schools as public schools. As schools that are open to all students within its school district, free to enroll in, funded by the State, and ultimately under the control of the State, charter schools operate as a component of the greater public education system.⁸ Although they enjoy a greater operational flexibility compared to traditional public schools, one can reasonably expect that this flexibility will not undermine their ability to function as truly public institutions. Such considerations are reflected in charter school laws and charters themselves, as they dictate the nondiscrimination and civil rights standards that these schools must adhere to.⁹ Ergo, charter schools can be understood to be identical to traditional public schools with regard to their most fundamental aspects. This plain view assessment is also consistent with how charter schools have been conventionally labeled for the purpose of regulation. Virtually every state law governing charter schools across the country explicitly describes them as public schools.¹⁰ Moreover, relevant dictionaries—such as Black’s Law Dictionary—rely on aspects such as funding through taxation, establishment under state law, and regulation by local state authorities for their definitions of a “public school.”¹¹ All of which apply to charter schools.

IIb: The Creation and Operation of Charter Schools Constitutes State Action

In their petition for a writ of certiorari, the Board claimed that the Oklahoma Supreme Court erred in its determination that the creation of St. Isidore can be considered to represent a state action—but their reasoning is not grounded in reality.¹² The aforementioned charter granting process is, by design, a function of the State using its authority in the provision of public education. In order for its creation, a charter school must have approval from a chartering authority, which is delegated powers by the State via statute. Furthermore, the State subjects the operation of charter schools to ongoing oversight and accountability measures to ensure that the duty to provide quality public education that they discharged to these schools is being properly carried out. Every step of their creation and operation, from approval to funding to regulation, is inextricably tied to state action. The establishment of a charter school, such as St. Isidore, can therefore be understood to inherently be state action.

In the Oklahoma Supreme Court’s ruling, they reason that a charter school also qualifies as a state actor in this context because there exists a close nexus between the State and the challenged action.¹³ The petitioners challenge this idea by pointing to notable circuit court rulings—such as the Ninth Circuit ruling in Caviness v. Horizon Community Learning Center and the Fourth Circuit ruling in Peltier v. Charter Day School—in an attempt to undermine the Oklahoma Supreme Court’s application of precedent.¹⁴ In doing so, they argue that circuit precedent actually favors the idea that charter schools don’t necessarily constitute state actors despite being public. However, such arguments distort the truth. As highlighted by the respondents, the highlighted cases ask whether specific conduct by a private party is fairly attributable to the state.¹⁵ In these situations, we have seen varied approaches and standards applied between different circuits to answer this question, as the petitioners indicate. However, a case like Drummond does not require these considerations. The salient issue in this case pertains to the mere creation and operation of a charter school under the power of the State, rather than any specific conduct by the school itself. In other words, the employment of religious instructors at St. Isidore is not itself what is being challenged here—it’s the approval and creation of a religious charter school by the Board that is being challenged. Thus, we can consider St. Isidore’s creation and operation to constitute state action when examining Establishment Clause claims, at least within the scope that is relevant in this case.

III. The Application of the Establishment Clause to Public Education

Historically, the enforcement of the Establishment Clause has had a robust role in ensuring that public education remains free from religious influences. Landmark rulings by the Supreme Court had consistently reaffirmed Justice Black’s idea of a “wall of separation,” as they have advocated for a neutral approach to religion where the State must neither advance nor inhibit it within public education. While based on core constitutional concepts, this principle stems from a more broad belief that understands public education to serve as a unifying force. Introducing practices or policies that could come into conflict with one’s adherence to a particular faith, or no faith, would run afoul of this ideal. By maintaining a strict separation between church and state in schools, the Court has been able to ensure that public education remains inclusive for students of all backgrounds. Although the Court has increasingly neglected its duties in this regard, the strength of Establishment Clause jurisprudence that still endures lies in its capacity to preserve public schools as secular spaces where civic values, not religious influences, define a student’s educational experience.

IIIa. Engel v. Vitale (1962)

Perhaps the most fundamental example of this comes from the landmark case Engel v. Vitale.¹⁶ In 1951, the New York State Board of Regents approved a nondenominational prayer for public schools to start each school day. They recommended and published this prayer as part of their “Statement on Moral and Spiritual Training in Schools.” It was not required, but the prayer was subsequently adopted by the Herricks School District. Teachers would lead the exercise every morning and participation was officially voluntary for students as they were allowed to stay silent. A group of parents, led by Steven Engel, whose children attended the local public schools filed suit in state court arguing that the school-sponsored prayer violated the Establishment Clause. The New York Supreme Court upheld the policy on the grounds that it was voluntary and did not favor any particular religion. The case was appealed to the New York Court of Appeals, which affirmed the trial court’s ruling. They concluded that the prayer was consistent with the state’s interest in promoting morality. Dissatisfied with this decision, Engel and the other parents petitioned the Supreme Court.

Justice Hugo Black, writing for the 6-1 majority, argued that the prayer did still represent an official endorsement of religion by the government despite the fact that it was voluntary and nondenominational.¹⁷ To support this notion, he largely relied on historical context and the intent of the Framers. Black detailed how the Establishment Clause was specifically designed to prevent the government from interfering with or promoting religion, as the Constitution was meant to be ingrained with the principle of neutrality towards religion. He explained how the Framers of the Constitution deemed this to be necessary in order to guarantee true religious freedom. In turn, Black stated that the mere concept of composing official prayers to be recited in public schools runs afoul of these core ideals. The state had placed its authority behind an official prayer, and the government’s involvement in promoting religious exercises in any way constituted an establishment of religion. The Court also rejected the notion that such a prayer should be permissible if it is nondenominational and optional due to the inherently coercive nature of school environments. Black reasoned that young children in a school environment, supervised by teachers and surrounded by peers, were particularly susceptible to indirect coercion. Given the fact that the reciting of the prayer was done in the classroom and led by teachers, he argued that policy implicitly encouraged participation and can marginalize those who do not. Therefore, the state’s promotion of the prayer created an indirect pressure for students to conform, undermining their religious freedoms and effectively generating a religious practice. Overall, the Court established that the government has no business promoting religious practices, especially in public schools.

IIIb. Lemon v. Kurtzman (1971)

While Engel and subsequent decisions by the Court played a crucial role in creating foundational precedent regarding the separation of church and state, it wasn’t until Lemon v. Kurtzman in 1971 that a dominant standard was established for determining violations of the Establishment Clause.¹⁸ The case dealt with two separate statutes.¹⁹ One was a Pennsylvania law that provided funding for non-public elementary and secondary school teachers’ salaries and instructional materials for secular subjects. The other was a similar Rhode Island law that supplemented a portion of teachers’ salaries at non-public elementary schools. Taxpayers in both Pennsylvania and Rhode Island challenged these statutes, arguing that they violated the Establishment Clause by effectively channeling public funds to private religious schools. Both states held that these were neutral measures intended to bolster education, highlighting that the funds were directed towards secular instruction only and not religious purposes. In Pennsylvania, the district court granted the state officials’ motion to dismiss the case. Meanwhile in Rhode Island, the district court ruled in favor of the appellees. Both the taxpayers in Pennsylvania, led by Lemon, and the state officials in Rhode Island appealed their respective cases directly to the Supreme Court, where they were consolidated.

The Court ultimately struck down both the Pennsylvania and Rhode Island statutes, 8-0 and 8-1 respectively. Chief Justice Burger wrote for the majority, arguing that although the laws had purposes that were secular in nature, their implementation still violated the Establishment Clause because of their application of funds to religious institutions.²⁰ The Court explained its reasoning by establishing what became known as the Lemon test. It was a three part test to assess a law’s adherence to the Establishment Clause, acting as the first clear standard on the topic, especially with regard to educational funding. Under the Lemon test, a law was required to (1) have a secular legislative purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid “excessive government entanglement with religion.”²¹ Both statutes failed this third prong because in order to ensure that funds were used only for secular instruction, there would need to be ongoing government oversight of religious schools receiving funds, effectively creating unnecessary entanglement. Though Lemon is no longer controlling precedent, it marks an important moment where the Court considered the constitutional boundary between church and state to be so sensitive and integral, that they viewed any public funding of religious schools to be unconstitutional, even when ostensibly limited to secular instruction.

IIIc. The Spirit of the Establishment Clause

These cases are highlighted not because they are necessarily the most relevant in modern Establishment Clause litigation. In the scope of public education, they embody the bedrock principles that have long represented the power of the Establishment Clause, or at least what it could be, within the realm of traditional jurisprudence. Engel and Lemon demonstrate that the separation of church and state is not just a nebulous concept or merely a general attitude to follow, but rather it is grounded in the pragmatic application and balancing of the First Amendment’s religion clauses. It is by no coincidence that these cases were all decided on a near unanimous basis despite the diverse ideologies present on the Court. Upholding this core tenet of the Constitution should not be, and historically has not been, a partisan issue. In each case, the Court considered circumstances that were fairly nuanced. In Engel, the school prayer was non-denominational and optional to participate in. In Lemon, the statutes in both states never directly sought to provide funds for the purpose of religious instruction. Yet, the Court resoundingly rejected any sort of compromise position because they understood that there is no meeting in the middle on such an issue. They recognized that by carving out exceptions or offering a more lenient standard, the integrity of the wall of separation would be compromised.

The Lemon test in particular carries significance because it is inherently hostile to any cause that seeks to erode the wall of separation between church and state.²² Each prong reinforces the idea that government policies and actions should be secular and separationist in nature. This, of course, is based on the underlying notion that religion is exclusively a private matter that has no role for the government. The Lemon test simply articulated this idea into a replicable standard to use for future litigation. Since the moment this ruling was given, many conservative justices have attempted to weaken or downplay the importance of Lemon.²³ Yet, Lemon wasn’t formally overturned until Kennedy v. Bremerton, over fifty years later.²⁴ The justices who opposed Lemon were reluctant to outright reject it for decades—understandably so, because this would require them to justify why allowing policies that advance or hinder religion would still be compatible with a Constitution that denies the state-sponsorship of religion.²⁵ The willingness of the Roberts Court to now cross that line goes to show just how quickly and drastically attitudes on the Court are shifting.

IV. Religious Charter Schools Are Unconstitutional

Under the backdrop of Engel and Lemon, a case like Drummond seems incredibly self-evident. The stark differences between these cases cannot be understated. In comparison, the creation of a religious charter school represents a far more extreme challenge to the limitations of the Establishment Clause. Examination of this issue from a position that is in any way grounded in the adherence to the separation of church and state will reveal several avenues from which religious charter schools can be deemed inherently unconstitutional.

First of all, case law has repeatedly affirmed that the State cannot instill religious instruction into public education.²⁶ This, of course, is primarily derived from the overarching concept of the separation of church and state. But, this reaches a heightened level of importance with regard to public education because of the nature of schooling. As it is a core duty of the government, parents should be able to trust that their public schools will provide their children with adequate education. These parents “condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family,” especially because students “are impressionable and their attendance is involuntary.”²⁷ As such, an integral aspect of this core duty is to honor this trust, and the only way to ensure this is by preventing religion from permeating into public education altogether. When the State discharges their educational duties by creating and operating charter schools, this consideration does not simply disappear. Religious schools, which by their nature prioritize religious teachings for their students, are completely incompatible with this goal. Again, this is undisputed. Instead of claiming otherwise, the Board bases their case on the aforementioned notion that charter schools remain as private actors for Establishment Clause purposes. But even if we were to entertain the argument that charter schools are still effectively “private,” religious charter schools like St. Isidore would still be unconstitutional.

IVa. The Issue of Carson v. Makin (2022)

Regardless of the public or private status of an entity, the Establishment Clause prohibits the direct public funding of religious education. Some may point to recent rulings by the Roberts Court to argue that under ruling precedent, the public funding of St. Isidore is permissible—but they would be mistaken. One of the more notable rulings came in Carson v. Makin.²⁸ This case dealt with Maine’s tuition assistance program for parents that live in a district that does not have a secondary school of their own or one that they contract with. The program allows parents to request that their local school administrative unit pay or reimburse the cost of tuition for their child to attend a secondary school of their choosing elsewhere. Historically, any school accredited by the New England Association of Schools and Colleges or approved by the state’s Department of Education was eligible, but Maine amended this program in 1981 to only include non-sectarian schools. Two Maine families, the Carsons and Nelsons, were ineligible for aid because they sought to send their children to religious private schools. The parents sued the commissioner of the Maine Department of Education, claiming that the non-sectarian requirement of the program violated the Free Exercise Clause and the Establishment Clause. The District Court granted summary judgement for the commissioner and the First Circuit would later affirm this judgment on appeal, leading the parents to petition the Supreme Court.

The conservative justices struck down Maine’s nonsectarian requirement with Chief Justice John Roberts writing for the majority, focusing virtually the entirety of the opinion on the Free Exercise Clause.²⁹ He claimed that the nonsectarian requirement violated the Free Exercise Clause because it discriminated against religion. Roberts invoked recent rulings, specifically Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, as the basis of his argument. These cases, he reasoned, established that a state cannot deny public benefits to institutions solely because of their religious character. In the case of Maine’s tuition assistance program, Roberts rejected the claim that the non-sectarian requirement was a neutral provision, instead claiming that it wrongfully disqualifies otherwise eligible schools on the basis of their religious instruction. Additionally, he rejected the First Circuit’s argument that this case meaningfully differs from Trinity Lutheran and Espinoza because it involves “use-based” discrimination rather than “status-based” discrimination. Instead, Roberts held that preventing someone from using state benefits for religion is just as unconstitutional as withholding benefits from someone on the basis of their religion. By characterizing the non-sectarian requirement as discrimination against religion, he established a standard of strict scrutiny, thus requiring Maine to demonstrate that the clause was narrowly tailored to serve a compelling state interest. Roberts made the puzzling assertion that an interest to uphold the separation of church and state and prevent public funding of religious activity does not meet this standard. He claimed that this interest is unfounded because the funding of religious schools through the program is the private choice of the parents and not a direct state action. Ergo, Roberts concluded that “neutral benefit programs” that provide funds to religious institutions through private choice do not violate the Establishment Clause.³⁰

Herein lies the chief distinction between Carson and Drummond. In Drummond, the funding of a religious school is not a matter of private choice. Because St. Isidore was granted a charter by the Board to operate as a public school, it is dependent on public funding for its operation. Therefore, the distribution of taxpayer dollars to St. Isidore is not contingent on the private choice of a student or their family. Regardless of their individual views or choices, taxpayers that live in the same district as St. Isidore would be required to indirectly fund it. In contrast, Maine’s tuition assistance program merely made a benefit available and parents chose, on their own accord, to direct those funds to religious schools. Overall, in Drummond, the state itself approves and establishes a sectarian entity to operate as a public school, providing public funds to support its inherently religious goals. This is a clear example of purely state action, as the individual decisions of parents play no direct role in this process. As a result, Drummond presents even greater Establishment Clause concerns because the government is not just indirectly accommodating religion, but actively underwriting it. So even when considering the flawed standards set by the Roberts Court itself, there is no reason to allow for the creation of religious charter schools.

IVb. Further Implications of Ruling in Favor of the Board

Moreover, a ruling in favor of the Board would be disastrous because St. Isidore does not exist in a vacuum. Permitting the creation of religious charter schools would pose significant harms to both students and traditional public schools. There are obviously concerns regarding the funding of religious private schools. Public funding of education, where the amount distributed is typically a function of enrollment, would pull resources away from traditional public schools.³¹ This effectively diverts public funds from schools that serve the states’ overall educational objectives to schools that do not, and instead serve the primary purpose of advancing certain religious teachings. Needless to say, this would be a gross misuse of public funds. But, the most glaring concern lies within one of the core use cases for charter schools. Many rural communities have been left with no or few school options because of consolidation or a lack of students to sustain a local school. In some of these cases, charter schools have become the only school in the neighborhood.³² Meanwhile, cities such as New Orleans and Detroit have seen local public schools replaced by charter schools at an alarming rate, so much so that these charter schools encompass most, if not all, public school options in some neighborhoods. It can be seen that permitting religious charter schools has the very real potential of creating situations where students have to attend charter schools affiliated with a religion that they do not subscribe to because it is the only public schooling option available to them. This would create the very religious coercion problem that cases such as Engel warned of and that the adherence to the separation of church and state doctrine was meant to prevent. Therefore, the permittance of religious charter schools would likely result in the undue promotion of religion at the expense of religious minorities and those who do not adhere to a religion, placing vulnerable students at risk of discrimination or exclusion. And thus, religious charter schools would not only endanger core pillars of the First Amendment, but also the role of public education as a unifying and equalizing force in our democracy.

V. The Future of the Establishment Clause

Ultimately, there is no legitimate reason for the Court to allow for the creation of religious charter schools. There are numerous constitutional roadblocks that should prevent schools such as St. Isidore from ever existing. Essentially every aspect of a charter school’s creation, from the approval process to its public funding and government oversight, guarantees blatant violations of long-respected Establishment Clause principles. The damage that this would cause if permitted is significantly heightened due to the delicate nature of schooling and the pivotal role of public education in preserving and bolstering democratic society. Discharging educational duties to religious organizations would blur the line between church and state beyond recognition, generating completely unnecessary government entanglement in religious affairs and exposing students to state-sponsored religious influence. In Drummond, a ruling in favor of the Board would not only defy decades of normative separatist jurisprudence, but would also undermine the inclusivity and neutrality that public schooling is meant to embody.

While it is astounding that the Court was as divided as it was when it ruled 4-4 on this case, this did not come out of nowhere. For the last few decades, the Court has gradually eroded separationist protections, the rate of which has exponentially increased in recent years. This shifting of opinion on the Court is not grounded in any legitimate constitutional concerns or jurisprudence. Rather, this shift represents the growing influence of Christian nationalist ideology in American political discourse that has sought to utilize public institutions such as schools to advance its worldview.³³ As this movement has gained traction, its proponents have influenced courts and policymakers into reworking the Establishment Clause into a permissive framework that allows government alignment with sectarian institutions under the guise of expanding “religious liberty.” This development has reinforced the majoritarian status of the Christianity and normalized its presence in day-to-day governance.

As Drummond shows, this has invited religious organizations to challenge the Establishment Clause in ways that would never previously be entertained, shifting the window of discourse on religion in public schools to a dangerous place. But it’s not just Drummond—there are many cases on the horizon that seek to completely dismantle the wall of separation in the sphere of public education.³⁴ The future of the Establishment Clause hinges on the Court’s ability to finally draw the line on this issue. It is imperative that this happens as soon as possible. Separationism is the only approach to church and state that is compatible with our understanding of a limited constitutional democracy³⁵ The stability of our constitutional system depends on the government maintaining strict neutrality in matters of faith, especially in institutions that shape the next generation. If the Court continues down its current path, the nation risks entering an era where access to truly public education free from religious coercion is no longer a guarantee. The wall of separation was built as a practical necessity for sustaining a diverse, pluralistic society and is clearly still needed today. Unless the Court reasserts itself as a protector of this fundamental principle, the integrity of both our public schools and our democracy will remain in jeopardy.

Edited by Preeta Swaminathan and Lily Marcovich

About the Author

Andreas Kapoglis is a senior at Northeastern University majoring in Political Science and Economics with a minor in Data Science. He has served as a Digital Writer for the Northeastern University Undergraduate Law Review since Fall 2025. Last semester, he wrote a note titled A Wall in Ruins: What Drummond Reveals About the Future of the Establishment Clause and Public Education, arguing that religious charter schools are incompatible with the separation of church and state in light of the Supreme Court’s split decision in Oklahoma Charter School Board v. Drummond.

Andreas’s legal interests include immigration law, labor rights, and civil liberties. He previously served as a paralegal co-op at O’Malley, Harvey and Brosnan, LLC and a legal support co-op in the Major Crimes Unit of the U.S. Attorney’s Office for the District of Massachusetts. Additionally, he is the former president of the Systemic Justice Project (now Critical Corporate Theory Lab) on campus.

In his free time, Andreas enjoys playing pick-up soccer with friends, cooking/baking, and learning new languages.

A Wall in Ruins: What Drummond Reveals About the Future of the Establishment Clause and Public Education

Abstract

I. Introduction

II. The Role of Charter Schools in Public Education

IIa. Charter Schools are Established as Public Schools by the State

IIb: The Creation and Operation of Charter Schools Constitutes State Action

III. The Application of the Establishment Clause to Public Education

IIIa. Engel v. Vitale (1962)

IIIb. Lemon v. Kurtzman (1971)

IIIc. The Spirit of the Establishment Clause

IV. Religious Charter Schools Are Unconstitutional

IVa. The Issue of Carson v. Makin (2022)

IVb. Further Implications of Ruling in Favor of the Board

V. The Future of the Establishment Clause

About the Author

Notes from the Author

A Wall in Ruins: What Drummond Reveals About the Future of the Establishment Clause and Public Education

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