Hermiston Christian School in Oregon is suing Governor Kate Brown and other public officials for religious discrimination. The school is claiming that the state violated the free exercise clause by mandating the closing of private schools while allowing public schools to reopen.
The Alliance Defending Freedom opened the lawsuit on October 16 on behalf of the school. They are an American, Conservative, Christian, non-profit which advocates for religious freedom. In the lawsuit they issued the statement, “After 41 years of faithful service, Hermiston Christian School (‘HCS’) could be forced to shut its doors for good unless the Court stops an obvious case of discrimination: Defendants’ COVID-19 orders and guidance generally prohibit in- person instruction but grant a ‘small school’ exception to public schools while denying the same exception to private religious schools (‘Religious School Closure’) in Umatilla County.”.
Months prior to the fall semester the government told the school it could reopen if it followed the health guidelines. In order to prepare for this the school used resources and money to assure that they could hold in person classes. The school thought they could open, because they were below the state’s 75 student body threshold. However, governor Kate Brown used her power in order to change the requirements for which schools could meet in person and which ones had to stay closed. The new guidelines made the requirement for reopening based on the health of the overall county. This might have been acceptable if it was applied properly; which it was not. The government instead gave exemptions to some small, public schools and did not give exemptions to any private schools. A violation of the state’s order could result in 30 days of jail and a $1250 fine.
In Sherbert v. Verner the Supreme Court ruled that the government can limit religious freedoms if there exists a compelling state interest. In this case an advisor for the governor argued that there was a fear of a ‘mass exodus’ from public schools. This was the only argument that she made because while they prevented small, private schools from opening; they allowed small public schools from the same county to open.
The Senior Counsel for the Alliance Defending Freedom wrote in a statement “Hermiston Christian School operates in the same county as a public school that is open, and it operates with the same number of students, who are performing the same type of activity, working in an even larger physical environment, and complying with the same health and safety protocols. Gov. Brown’s refusal to extend the same treatment to Hermiston Christian School as she does to small public schools violates the U.S. Constitution and discriminates against parents who choose to provide a religious education for their children.”.
We know from Yoder v. Wisconsin that there is no compelling state interest to force kids to attend public school nor can the state mandate that children attend public school. If the only argument for the state to discriminate against private schools is to prevent a decrease in public school attendance then I do not see the state winning in court. The only argument that could be made is that indirect religious discrimination is not unconstitutional. It would be very difficult to find definitive evidence for direct religious discrimination in this case, but the compelling state interest does not seem strong enough to gain the state a victory in court. The argument that one could make is that the U.S private school system is 78 percent religious and in Oregon it is 51 percent religious. Although lower than the nationwide average, the private school system of the anti-religion state of Oregon would still be classified as a majority or religious. One could then argue that secularism is a religion and that the government has made laws respecting the establishment of such religion.
9 comments:
I agree that the statute and specifically the way it was applied was unconstitutional. I can understand how many public schools as a result of COVID are seeing a decline in attendance but that is mostly due to children deciding to do cyber school or something of the sort so I am not entirely sure how not allowing private, religious schools to reopen is going to help their case. Still, I think the state is then showing a hostility toward religion if they are favoring public school reopenings over that of private, religious schools. If the state applied the statute based on the health of counties and it just so happened that more private, religious schools would have to be shut down over public schools, then I think the Sherbert Test should be invoked and that there is a compelling interest in being hostile in a way towards these religious schools.
I agree with you, Ryan. I believe that Governor Brown did not have sufficient evidence to make the argument of the compelling interest to protect the health of the overall county. I think it's important to note that the governor allowed a public school to open in the same county, with the same number of students, but denied the private school to reopen.If the county's health was a true compelling interest, then the governor would've denied all schools to reopen. This must be consistent with the guidelines that the county put in place.
While I do have an issue with the way that this mandate has been applied, and don't agree that it is just and reasonable to allow public schools of the same size to hold in-person classes while refusing to allow private schools to do the same, I'm not convinced that this is a constitutional issue regarding the First Amendment. Even though a religious school may not be able to hold in person classes for the time being, the school is still able to function remotely and serve its religious purposes in that way. The mandate from the governor does not directly infringe upon the school's ability to freely exercise its religion as an institution, and for that reason I don't think that the First Amendment cab be invoked to open the school for in-person instruction.
While I completely agree with your perspective in this case, as Oregon is clearly discriminating against private, religious institutions, I disagree with your application of Yoder. I would argue that there is clearly a compelling state interest in education, and that Yoder was ruled as an exception to the overwhelming rule. This interest in education cannot be made however, at the expense of parental choice. The degree of parental choice in Yoder was allowed with overwhelming evidence of historical, cultural, and religious precedent in the Amish community and the entanglement between the three. In Oregon we might not have the same history, but the government still cannot restrict choice in such an overtly discriminatory way.
I agree that the mandate was completely applied incorrectly. Based on the actions taken by the Governor and the state, there was a clear intention to burden private institutions and religious institutions. If the Governor had only been concerned about the mass public health crisis, she would have required ALL schools to close down rather than only allowing private schools to do so. The inconsistency in the guidelines is only further proven by the fact that a public school in the same county was allowed to reopen while Hermistan Christian School was not. I would slightly disagree with the points above and in the post that there isn't sufficient proof of religious discrimination. The fact that 78% of private schools in the state are religious and they are being burdened more so than anyone else when public schools with the same demographics are not shows a direct burden on the religious institutions.
I cannot say that I disagree with your conclusion. It is hard to pin down what exactly a compelling interest is to the state. In this instance, I would say that you are correct in suggesting that the government has no ground to stand on in their decision to close down the schools. Even if they did, it only seems fair that the prohibition should extend to all schools, rather then just religious ones. The other article here on Calvary v. Herring argues for a similar point, which you get at towards the end of your analysis. That point being what the difference in validity is between two equal worldviews. It seems some people subscribe to a secular worldview and others, religious one. However, assuming that both provide the same structure regarding the rules and customs of a society, than how are they different? Religion and secularism, in an institutional sense, occupy the same space, and there is only so much room, so at one point, one will have to be favored above the other.
I agree with the author's stance. The state of Oregon is discriminating against religious institutions and there is not a clear compelling state interest, which seems hostile towards religion. It is simply not right to allow public schools to have the same gatherings, but prohibit private/religious schools from doing so as well. If there was a compelling state interest due to the public health concern of COVID, then public schools should not be allowed to open either.
I agree with Emma's response here. While the statute is definitely misguided, it is technically religiously neutral. It ends up affecting religious private institutions indirectly, but the mandate isn't saying "religious schools cannot open", it's trying to prioritize public schools, which the government has the theoretical right to do. I do think it presents problems, but not necessarily in regards to the Free Exercise Clause because private schools are still free to operate via zoom and online. The content of their speech is not being policed in any way, nor are they being targeted due to their religious affiliation. That being said, I can see the argument that the government interest is not overriding enough and that there is a somewhat primary effect on religious institutions, but religiously affiliated schools aren't quite religion in the way that a church is, and I'm not quite convinced that free exercise is really being limited in a substantial enough way since the content is not being regulated, just the means of distributing it.
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