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The U.S. Supreme Court will take up a potentially momentous case about religious charter schools, involving issues that could radically alter the character of American education, both in terms of school choice and state funding of public education.
The court on Jan. 24 granted review of two related appeals stemming from the effort to establish a state-funded Catholic virtual charter school in Oklahoma. That state’s supreme court last year ruled that the proposed St. Isidore of Seville Catholic Virtual School—which would be sponsored and controlled by the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa but would receive state per-pupil charter school funding—would violate both the state and federal constitutions.
The U.S. Supreme Court set briefing deadlines that indicate the case will be scheduled for arguments in late April, with a decision expected by late June or early July.
Furthermore, Justice Amy Coney Barrett took no part in the decision to grant review, suggesting she is likely to remain recused altogether. Although Barrett did not give an explanation, she is a former faculty member at the University of Notre Dame Law School, and the school’s religious liberty clinic is helping represent the Catholic sponsors of the proposed charter school.
Barrett’s recusal would leave only eight members of the court to decide the case. A deadlocked vote would affirm the decision below without an opinion and without setting a major precedent, but the court’s most recent decision striking down a state’s exclusion of religious schools from a state aid program, in Carson v. Makin in 2022, was decided 6-3.
Supporters of Catholic charter school look to recent U.S. Supreme Court rulings
The St. Isidore proposal has been a debate in Oklahoma and nationally for the last two years. The Catholic sponsors and their supporters believe that the U.S. Supreme Court’s recent decisions expanding permissible uses of state aid benefiting private religious schools make the time ripe for their concept of a virtual religious charter school that should not be excluded from the state’s charter school program merely because of its religious character.
“Time and again, this court has held that the [First Amendment’s] Free Exercise Clause prohibits a state from excluding a school from generally available funding programs solely because the school is religious,” St. Isidore said in its appeal to the high court. “That is precisely what occurred here. Oklahoma has applied its law to bar St. Isidore from participating in the charter school program simply because it is Catholic.”
The school’s appeal is St. Isidore of Seville Catholic Virtual School v. Drummond, while the companion appeal in Oklahoma Statewide Charter School Board v. Drummond involves the arguments of the state charter authorizer.
“This court has repeatedly struck down states’ attempts to exclude religious schools, parents, and students from publicly available benefits based solely on their religion,” the state charter board’s appeal says, citing the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, its 2020 decision in Espinoza v. Montana Department of Revenue, and its 2022 ruling in Carson v. Makin, which all overturned state exclusions of religious schools from generally available aid programs.
Oklahoma’s Republican attorney general leads battle against religious charter
On the other side of both appeals is Oklahoma’s Republican attorney general, Gentner Drummond, who had issued an advisory opinion in 2023 that a religious charter school would violate the Oklahoma Constitution’s clear directive” that public schools be operated “free from sectarian control,” as well as a state statute requiring that charter schools be “nonsectarian.”
Despite Drummond’s advice, a predecessor to the state charter school board approved St. Isidore later that year. The school was set to begin its contract in July 2024 with some 400 to 500 students and receiving some $2.5 million in state education aid in its first year, but legal challenges prevented that.
Drummond brought the case to the Oklahoma Supreme Court which led to a ruling against St. Isidore on both state and federal constitutional grounds.
“Although a public charter school, St. Isidore is an instrument of the Catholic Church, operated by the Catholic Church, and will further the evangelizing mission of the Catholic Church in its educational programs,” the state supreme court said in a 6-2 ruling. “Enforcing the St. Isidore contract would create a slippery slope and what the [state constitutional] framers warned against—the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
The state’s highest court said that the religious charter school would be a “state actor” and not a private entity contracting with the state. State funding of the school would violate the U.S. Constitution’s First Amendment prohibition on government establishment of religion, the court said.
The Oklahoma high court further rejected a central argument advanced by St. Isidore supporters, that the recent U.S. Supreme Court decisions removing barriers to the inclusion of religious private schools in state aid programs gave St. Isidore and the families that would enroll a First Amendment free exercise of religion right for the charter school to be funded by the state.
In his brief, Drummond offered several arguments why the U.S. Supreme Court should not take up the case, including that the state supreme court decision was correct and that taking up this case “ would offer little guidance about whether charter schools in other states are public or private.”
Drummond was supported in a friend-of-the-court brief filed by the National Alliance for Public Charter Schools, which said that “public charter schools are joint undertakings with the state, fully funded by the state, occupying a unique space within the public school system—and accepting of both the rights and responsibilities that come with that.”
But the state charter board and St. Isidore had the support of friend-of-the-court briefs from Oklahoma Gov. Kevin Stitt and state Superintendent of Public Instruction Ryan Walters, both Republicans, as well as a joint brief from nine Republican-led states and various conservative groups.
Now that the Supreme Court has granted review, it is likely to be flooded by many more such briefs between now and late April.