Oregon Religious Schools Face a Higher Standard to Reopen

In October of 2020, Hermiston Christian School of Oregon filed a lawsuit in federal court against the State’s Governor Katherine Brown citing her uneven treatment of public and private schools with regard to the state’s reopening of K-12 education.  Most of the state of Oregon did not start the 2020-2021 school year with in person education.  However, the governor made exceptions for small public schools that had 75 or fewer students.  Despite meeting the state’s health and safety protocols, Governor Brown refused to extend such exemptions to private and private religious schools of equal size.  The Governor threatened to punish schools that reopened against these orders with 30 days jail time and $1,250 in fines.  A spokesperson for the governor openly noted that Brown favored public schools because she feared an exodus to private education.  In their suit, Hermiston Christian School argued that the governor’s preference for public education does not allow the state to discriminate against private religious schools that meet the standards for reopening that public schools did. Hermiston Christian School dropped their lawsuit recently when Governor Brown extended openings to private schools. However, their arguments against the governor remain valid as they were subject to unequal treatment for several months of the school year. Hermiston Christian School believed that the governor was violating their First Amendment right to free exercise of religion.  Likewise, they felt that state was unfairly holding religious schools to a higher standard, showing clear discrimination “against parents who choose to provide a religious education for their children.”  When inspected by the Oregon Department of Education, the department noted that, the “facility is very clean and organized. [Staff] were very well prepared and are following the Health and Safety Guidelines.”  Hermiston Christian felt that since they met the health standards set by the state they should have been afforded an equal opportunity to open classrooms.  The only thing that appears to differentiate the schools Governor Brown had opened and closed in this case is the nature of the institution: Public (secular) versus Private (mix of secular and religious). 

In Everson v. Board of Education of Ewing Township (1947) the majority ruled that “State power is no more to be used so as to handicap religions, than it is to favor them.” In Oregon it is apparent that the power of the state was being used to favor public schools. While meeting the same standards as public schools, private religious schools were unable to reopen in person to teach their students. Moreover, in Zorach v. Clauson (1952), the majority makes it explicitly clear that although the establishment clause of the First Amendment creates a wall of separation between church and state, it does not create or allow a state “philosophy of hostility to religion.” In a similar case, Pierce v. Society of Sisters (1925), the Supreme Court established that the government could not force children to attend public school instead of private or religious schools that meet secular standards. To do so would violate American’s liberty, particularly their religious liberty. With such a long and well established precedent that the state must be neutral towards public and religious/private education, it is surprising Governor Brown failed to treat schools in her state neutrally.'

While reviewing this case, the violation of the First Amendment rights of Oregonians is not immediately obvious. It seems that the government had preferred public education to private education in expedited re-openings amid the COVID-19 pandemic. However, once it is understood that much of the private schools operating in Oregon are in fact religious schools, there is an understandable tension with the First Amendment right to free expression of religion and the way the Supreme Court has traditionally interpreted establishment clause cases. By favoring public schools to resume in person classes it limited the ability for families to send their children to religious schools. The state was clearly penalizing children that did not choose secular schools by delaying their return to in-person instruction. This decision harmed private religious schools who were operating at a disadvantage. Supreme Court rulings like Everson v. Board of Education, Pierce v. Society of Sisters, and Zorach v. Clauson established that purposefully disadvantaging religious liberty is unconstitutional. This issue is important to every American, religious or otherwise, because the danger of the government protecting liberties unevenly to select groups is both dangerous and unconstitutional.