An eight-member U.S. Supreme Court seemed to lean slightly in favor of allowing the nation’s first religious public charter school on Wednesday, with the potential swing voter—Chief Justice John Roberts Jr.—appearing skeptical of excluding religious schools from qualifying as taxpayer-funded charter schools.
Still, the court emerged from Wednesday’s oral arguments closely divided over whether excluding a Catholic online school from Oklahoma’s public charter system violates the First Amendment. The school, St. Isidore of Seville Catholic Virtual School, is a recently created K-12 online school established by the Archdiocese of Oklahoma City and the Diocese of Tulsa during the COVID-19 pandemic.
The entity behind the school has described it as a “genuine instrument of the Church” with an “evangelizing mission.”
The justices are reviewing an Oklahoma Supreme Court decision that a state charter school board violated the Oklahoma Constitution when it approved St. Isidore as part of its state-funded charter school program—the first such school in the country.
Lawyers for both the school and the school board have argued to the Supreme Court that that decision violated the First Amendment, which they say prohibits states from excluding religious schools from certain types of charter school programs.
“When a state creates a public program and invites private actors, it can’t exclude people or groups because they’re religious,” argued James Campbell of the Alliance Defending Freedom. Campbell was representing Oklahoma’s virtual charter school board, which—in contrast to the state’s Republican attorney general—is defending its approval of St. Isidore.
Justice Amy Coney Barrett’s decision to recuse herself from the case has left the court one vote shy of its full complement of nine. Barrett did not publicly explain her recusal, though the justice has strong ties to the school’s attorneys at Notre Dame Law School, where she was part of the faculty before her appointment to the bench.
At oral arguments Wednesday, the court’s three liberal Democratic appointees pushed back against the inclusion of religious entities in charter school systems, while the four most conservative Republican appointees expressed the view that their exclusion is unconstitutional.
That appears to leave Roberts’ vote key to the outcome of one of the most significant cases affecting the nation’s public education system in years.
According to a lawyer for Oklahoma Attorney General Gentner Drummond, forcing the state to accept St. Isidore as a taxpayer-funded charter school would affect the laws in as many as 47 states, along with a federal charter school grant program—all of which have similar restrictions against “sectarian” charter schools. That would have a “dramatic effect on charter schools across the country,” said the lawyer, Gregory Garre of Latham & Watkins.
During the hearing, Roberts, the court’s most moderate Republican appointee, asked probing questions of both sides, though in the end he appeared skeptical of Oklahoma’s religious exclusion.
Roberts cited a recent Supreme Court ruling, Fulton v. City of Philadelphia, in which the court’s conservatives held that Philadelphia could not refuse to contract with a Catholic foster care agency over its stance on same-sex parents.
“We held [the city] couldn’t engage in that discrimination,” Roberts said.
“How is that different from what we have here?” he asked Garre. “You have an education program and you want to not allow them to participate with a religious entity.”
The other conservative justices were more forceful in their critique of Oklahoma’s exclusion of St. Isidore.
Justice Brett Kavanaugh said it “seems like rank discrimination against religion,” adding that the court has established that governments can’t treat religion as “second-class in the United States.”
Meanwhile, the three liberal justices raised concerns about the possibility of contributing to religious strife by allowing some religious schools versus others. Noting that the state exercises some control over the curriculum of its charter schools, Justice Elena Kagan suggested some minority religions might be excluded.
“There are religions that are going to have no problems,” Kagan said. But other religions might feel that some of those teachings violate their beliefs, she added.
The case is the latest—and arguably biggest—test of the conservative majority’s appetite to remove legal barriers for religious groups seeking to participate in taxpayer-funded programs.
Under the First Amendment, governments can neither make an “establishment of religion” or prohibit “the free exercise thereof.” In recent years, the court’s Republican-appointed majority has recognized an increasingly muscular Free Exercise Clause and consistently held that states cannot prevent churches from receiving generally available government subsidies.
Those recent precedents—starting with the court’s 2017 decision about a state playground resurfacing program in Trinity Lutheran Chuch of Columbia v. Comer, and culminating in the 2022 decision on tuition assistance programs in Carson v. Makin—were front and center at Wednesday’s hearing.
The stakes of the case involving St. Isidore of Seville Catholic Virtual School, however, appear to be dramatically higher than those earlier First Amendment rulings, which involved relatively modest state programs. In contrast, each of the 47 states around the country that allow publicly funded charter schools require them to be nonsectarian, a separation between church and state that has stood for decades.
Much of the debate at Wednesday’s hearing focused on whether the charter schools are effectively acting as government entities as a result of the state’s control over their academics.
Attorneys for St. Isidiore and the school board argued that the state controls very little, and allows broad discretion in the way its charter schools operate. On behalf of the state’s attorney general, however, Garre insisted that Oklahoma is heavily involved in regulating charter school education all the way down to the particular grammar lessons that need to be taught in ninth grade English class.
Chief Justice Roberts suggested that the “comprehensive involvement” of Oklahoma in overseeing charter schools was different than those earlier precedents.
In questioning U.S. Solicitor General D. John Sauer, Roberts posed the same question: “Does the extent of that involvement [by the state] affect the analysis in terms of whether there’s too much state involvement to view it as a truly private charter school?”
“I don’t think so,” Sauer answered.
Conservative Rulings Open Door to Religious Charter Schools
The origins of the nation’s first religious charter school go back to a 2020 Supreme Court decision involving a Montana tax credit program for private school education.
There, in a 5-4 vote, the court’s conservative majority held that the state department of revenue had violated the Free Exercise Clause by allowing individuals to claim tax credits for donations to scholarship organizations, provided that they not be used at religious schools.
“A State need not subsidize private education,” Roberts wrote in the majority opinion in Espinoza v. Montana Department of Revenue. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
The court would apply that logic two years later in in Carson v. Makin, holding that the Maine Department of Education could not limit a tuition assistance program for students in rural areas to “nonsectarian” institutions under the Free Exercise Clause.
“The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion,” Roberts wrote in another majority opinion, this time in a 6-3 ruling by virtue of Justice Barrett’s appointment.
In response to the court’s decision in Espinoza, Notre Dame Law School professor Nicole Garnett, a close personal friend of Barrett, published a paper for the Manhattan Institute arguing that “religious charter schools are not only constitutionally permissible in most states but that, after Espinoza, where they are permissible, they may not be prohibited.”
Garnett’s research caught the attention of St. Isidore’s organizers, who were interested in her advice about whether they could launch a virtual public charter school during the COVID-19 pandemic.
With help from Notre Dame Law School’s new Religious Liberty Clinic, the school secured final authorization from the Oklahoma Statewide Virtual Charter School Board to operate as the nation’s first faith-based charter school in 2023.
Critics have dubbed St. Isidore a “test case” to push the boundaries of the law.
The board’s approval of St. Isidore was subsequently challenged in court by the state’s Republican attorney general, Gentner Drummond, as a violation of state and federal constitutional law. which ultimately ordered the state to rescind its contract.
Drummond split with other prominent Oklahoma Republicans in challenging the religious charter school, including the state governor and his predecessor as attorney general. Drummond has said he was “duty bound” to challenge the board’s approval decision in the Oklahoma Supreme Court under the Oklahoma Constitution, which requires that the state’s public school system “shall be open to all the children of the state and free from sectarian control.”
During oral arguments Wednesday, Justice Samuel Alito Jr. brought up statements by Drummond that allowing religious schools would require taxpayers to fund Muslim education. Alito suggested the attorney general made “statement after statement” that he said “reeks of hostility to Islam.”
Garre, defending Drummond, said the attorney general was simply pointing out that allowing taxpayer-funded religious schools would create the kind of “strife” that the Establishment Clause of the Constitution was meant to prevent.
Kavanaugh was perhaps the most animated questioner at Wednesday’s hearing.
“They’re not asking for special treatment,” he said. “They’re not asking for favoritism. They’re just asking, don’t treat us worse because we’re religious.”
A ruling is expected by July.
The consolidated cases are Oklahoma Statewide Charter School Board v. Drummond, No. 24-394, and St. Isidore of Seville Catholic Virtual School v. Drummond, No. 24-396.
Update: This story has been updated to include the correct year that Carson v. Makin was decided.