Last weekend I hauled the suitcase filled with school uniforms stored in the basement up to the living room. I’ve got to order the “next size up” for my young scholars and head out to Walmart to purchase a long list of school supplies before the end of August. Then again, is there a chance that my kids won’t go back to school?  

Unlike students enrolled in public schools whose future depends on politicians and school boards petrified of teachers’ unions, my children attend private religious schools — my local parish school and a Classical Christian high school, to be precise. Back in mid-March, our schools sent students home for distance learning in obedience to the state stay-at-home orders. Teachers adapted. They dabbled in distance learning. The results, to be honest, were a mixed bag. That’s why I was thrilled to hear that both schools plan to reopen with real-life classes this fall.  

Reopening Catholic and other private religious schools will benefit countless children like mine. Nearly 1.8 million students attend Catholic schools. They rank much higher in results — a 99% graduation rate, with 86% of their graduates going on to college — than their public school counterparts. Catholic schools eliminate the achievement gap for low-income and minority children. 

But opening them up again isn’t as simple as it sounds. These are weird times. Catholics schools need to do it carefully, because plenty of people want them to stay closed and are just waiting for them to slip up. So they need to understand the law, use it to protect themselves – and exercise some prudence.

Let’s begin with the lawful autonomy afforded to Catholic and other private religious schools. They must be aware of it and make use of it courageously. Numerous school boards — including those in the Washington, D.C. region where I live — recently announced that public school students will continue to stay home. California’s Gov. Gavin Newsom ordered distance learning for both public and private schools in many counties this coming fall.

Religious schools, though, should not feel bound by state and local reopening decisions. We need to keep reminding ourselves of that, because quite a few state officials don’t understand — or pretend not to understand — that the law is on the side of the independence of religious schools.

Fortunately, that’s not a problem in Texas. In mid-July, Attorney General Ken Paxton sent an admirable letter to religious private schools in his state. He assured these educators that he “acknowledges the robust constitutional and statutory protections unique to religious individuals and communities at all times, even during the COVID-19 pandemic.”

Local governments in Texas, wrote Paton, are “prohibited from issuing blanket orders closing religious private schools.” He also cited federal law and the First Amendment as additional sources safeguarding the autonomy of religious schools. In Our Lady of Guadalupe v. Morrissey-Berru, for example, a 7-2 majority of the Supreme Court this past term explained that “the First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

Paxton was spot-on when he referred to Our Lady of Guadalupe in his letter. Few matters of Church governance are more fundamental than the right to decide whether or not to open for business.

To date, the high court has refused to address the rights of religious institutions during the pandemic. In May, for example, it refused to review a California church’s objection to an executive order placing temporary limits on attendance at places of worship to 25% of building capacity or a maximum of 100 attendees. The legal threshold justifying the high court’s involvement – “that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional” – just hadn’t been shown, wrote Chief Justice John Roberts.

Late last Friday, the Supreme Court again dodged the issue in a case involving an executive order in Nevada requiring “[c]ommunities of worship and faith-based organizations” to limit “indoor in-person services … so that no more than fifty persons are gathered, and all social distancing requirements are satisfied.” By contrast, casinos and other facilities such as gyms, bowling alleys and movie theaters may admit 50 percent of their maximum occupancy. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented from the court’s decision to ignore a Nevada church’s request for an order that would have allowed it to host services for around 90 congregants. To quote Alito: “A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”

Before long, the high court is bound to look at the constitutionality of government orders affecting the operations of religious institutions. I am confident that religious institutions will be the victors. In the meantime, Catholic and other religious schools, especially in regions where hospitals are far from being overtaxed, should forge ahead with plans to reopen this fall.

Now, the freedom to operate without undue government interference doesn’t mean that school administrators and staff should behave like a bunch of pandemic deniers. Schools reopening this fall instead must be prudent.

Getting kids safely back in the classroom is possible. The Centers for Disease Control suggest simple measures like the use of masks, repurposing unused and outdoor school spaces and “cohorting” — which means a group of students stay together throughout the day. Superintendents and principals of Catholic and other religious schools need to pay attention to this perfectly sensible advice, and not dismiss it. They should update their draft plans for operations and mitigation consistent with this latest guidance from the federal government. The National Catholic Education Association is playing a useful role here: It is collecting reopening plans and safety protocols and plans to share “best practices” with the 6,000-plus Catholics schools in the U.S. 

In short, schools have to get ready now. Teachers, staff, students and parents must learn how to follow a school’s “pandemic plan” before classes begin. Schools also must be ready to make adjustments as the school year progresses, fully aware of the status of COVID-19 transmission in their community.  

And the good news? The messy situation we find ourselves in is an opportunity for Catholic and religious schools to rediscover their mission. Schools that reopen, fully committed to the safety and wellbeing of teachers, students and their families, will be teaching students much more than the lessons found in textbooks.

By their courageous and careful example, they will also be teaching important virtues such as fortitude and prudence. And I’m looking forward to my kids learning these lessons in the classroom this fall.

Andrea Picciotti-Bayer is a legal analyst and regular Register contributor.