Supreme Court majority seems open to religious public charter schools

A divided Supreme Court on Wednesday appeared open to allowing the creation of the nation’s first public religious charter school in Oklahoma, a blockbuster move that could reshape American education and redraw the boundary between church and state.

A ruling for St. Isidore of Seville Catholic Virtual School would for the first time allow direct and complete taxpayer funding to establish a faith-based school, sanctioning government sponsorship of a curriculum that calls for students to adhere to Catholic beliefs and the church’s religious mission.

The change could have vast – and unpredictable – implications for parochial, charter and traditional public schools, and would probably spark efforts to create similar schools in other states. It would also supercharge a push by the conservative majority on the Supreme Court to give religion new prominence in public life.

During oral argument Wednesday over the legality of St. Isidore, sharp ideological differences emerged among the justices.

While all three liberals expressed deep skepticism about a religious charter school, there was no clear indication that any conservative members of the court would join them in voting against the proposal. Justice Brett M. Kavanaugh signaled his support, saying that excluding religious schools from the charter school program “seems like rank discrimination.”

“Our cases have been very clear,” he said, referring to recent rulings that have expanded when it’s permissible to use tax dollars for religious education. “I think those are some of the most important cases we’ve had, of saying you can’t treat religious people and religious institutions and religious speech as second class in the United States.”

Justice Neil M. Gorsuch made a similar point, saying religious schools are “not asking for special treatment.” They are “not asking for favoritism. They’re just saying, ‘Don’t treat us worse because we’re religious.’ ”

Chief Justice John G. Roberts Jr., who is almost always in the majority in the most significant cases, asked probing questions of both sides. But Roberts has consistently sided with religious parties to expand the role of faith in public life.

Because Justice Amy Coney Barrett recused herself, only eight justices will vote on the legality of the school. A 4-4 tie would keep in place the Oklahoma state Supreme Court’s rejection of the school. A decision is expected by summer.

The court’s liberals pointedly questioned the attorneys supporting the creation of St. Isidore, indicating that they view religious public schools in a far different light than government funding for private school vouchers or infrastructure projects.

Justice Sonia Sotomayor said the essence of the First Amendment’s prohibition on government establishment of religion is, “we’re not going to pay religious leaders to teach their religion.” St. Isidore’s, she said, would use public money to pay Catholic leaders and Catholic teachers. “You can only be a teacher in this school if you’re willing to accept the teachings of the Catholic Church.”

Conservatives presented both sides of the case before the justices. Attorneys for the school, an Oklahoma charter board that approved it and the Trump administration argued in favor of St. Isidore, while an attorney for Oklahoma’s Republican attorney general, Gentner Drummond – who sued to stop the school – spoke against it.

James A. Campbell, an attorney for the charter board, told the justices that denying direct funding to St. Isidore amounts to anti-religious discrimination because states allow public money to flow to other types of charter schools. He also said the schools will give parents greater educational choices.

“There’s one type of education that’s off limits, and that’s religion,” Campbell said. “And that can’t be consistent with this court’s precedent.”

Detractors say public religious charter schools could sap dollars from traditional public schools, undermine support for the charter school movement and lead to discrimination against religious minorities, nonbelievers and LGBTQ+ students.

Gregory Garre, representing Oklahoma’s attorney general, said the state already has means to support religious education. “Oklahoma respects and promotes, through vouchers and other means, the abilities of families to secure such an education in a private school,” he said.

The Archdiocese of Oklahoma City and the Diocese of Tulsa are seeking to establish St. Isidore’s as an online-only school that would educate up to 500 students in kindergarten through 12th grade in its first year. The school would serve students with special needs and those in rural Oklahoma who do not have access to brick-and-mortar religious schools. The idea grew out of pandemic experiments with online learning.

St. Isidore’s would be open to students of all faiths and abide by state antidiscrimination rules, but school materials say “admission assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school.”

Students are also required to attend Catholic Mass and “support the (religious) mission of the School.”

Much of the argument Wednesday turned on the question of whether religious charter schools are public or private schools. The answer is significant because the government can require public schools to be nonsectarian, but it can’t restrict private schools from teaching religion.

Campbell said St. Isidore shouldn’t be considered a public school because the Oklahoma government was not responsible for its “creation and control.” He said it was created by Catholic dioceses and would be operated by a privately selected board. Garre countered that charter schools are defined as public in state law, and the government must approve them and regulate their curriculum and can shut them down.

Some states allow vouchers to pay for religious as well as secular private schools, but Garre said the creation of St. Isidore would be vastly different. He said a ruling that St. Isidore was a private school would render the federal charter school program unconstitutional as well as the laws of dozens of states and the District of Columbia, all of which require charters to be nonsectarian. Charter schools have traditionally been considered public schools.

“It would result in the astounding rule that states not only may, but must fund and create public religious schools,” Garre said. He called the notion “an astounding reversal from this court’s time-honored precedents.”

But several of the conservative justices seemed more persuaded by arguments that a decision against St. Isidore would impinge on religious liberty. They repeatedly returned to a key ruling in which the court said a state agency’s refusal to contract with a religiously run foster care service amounted to impermissible discrimination.

In that case, known as Fulton v. City of Philadelphia, the court said Philadelphia had violated the Constitution by not extending a foster-care services contract to Catholic Social Services.

“How is that different from what we have here?” Roberts asked. “You have an education program and you want to not allow them to participate with a religious entity?”

Some education experts say a ruling for the school could result in an explosion of new religious public charter schools, while supporters expect it would have more incremental effects. Some also predicted that a decision for the school might push liberal states to pull back on charter school authorization programs since many would probably be uncomfortable with public money going to religious schools.

Proponents of St. Isidore’s say the conservative majority on the Supreme Court opened the door to religious public charter schools with the Fulton ruling and others that broke down the high church-state wall that existed in recent decades.

In 2017, the court found that Missouri could not exclude a religious preschool from a playground resurfacing program. In a 2020 Montana case, the court required states that aid private schools to include some faith-based ones in that funding. In 2022, the court required Maine to let parents use vouchers for religious schools. The same year, it let a high school football coach pray on a school field.

Roberts concluded in the Montana case: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Justin Driver, a Yale law professor and an expert on education law, said the jurisprudence has recalibrated the Constitution’s traditional balance between religion and secularism laid out in the First Amendment. The free exercise clause prohibits the government from interfering with the right of individuals to practice religion, while the establishment clause prevents the government from establishing an official religion or favoring faith over nonbelief.

“This Oklahoma case is the potential culmination of the Roberts court effort to cast the free exercise clause in the starring role in our constitutional order,” Driver said. “And offer the establishment clause only a cameo.”

The case arrived at the Supreme Court after a long – and sometimes bitter – fight that divided Republicans in Oklahoma, one of the nation’s most conservative states. Catholic officials first floated the idea for the school in 2021, before it was narrowly approved by the state’s virtual charter board in 2023 after significant debate and controversy.

The ACLU, Americans United for Separation of Church and State, and others then sued on behalf of a group of Oklahoma residents, asking for the approval to be overturned. They argued that their tax dollars should not go to a school that might discriminate against gay students and those of other faiths.

Drummond, the Oklahoma attorney general, then filed his own suit against the virtual charter school board, arguing the contract it signed with St. Isidore violated the state’s constitution. The Oklahoma Supreme Court sided with Drummond last year, and the contract was rescinded. St. Isidore’s backers then asked the Supreme Court to take up the case.

None of the five conservatives on the bench Wednesday demonstrated clear support for the lower court rulings that barred St. Isidore’s. Instead they seemed poised to go in a different direction.

“This is going to create uncertainty, confusion and disruption for, you know, potentially millions of schoolchildren and families across the country,” Garre said.

- – -

Daniel Wu contributed to this report.