Washington — The Supreme Court on Wednesday is set to hear arguments in a high-profile dispute over efforts in Oklahoma to create an online Catholic charter school, a case that could open the door to public dollars flowing directly to religious schools.
A ruling in favor of the school, St. Isidore of Seville Catholic Virtual School, could lead to the country’s first religious charter school and upend laws in 45 states and the District of Columbia, as well as the federal charter school program, all of which require charter schools to be nonsectarian, Oklahoma’s Republican attorney general, Gentner Drummond, has warned.
“This would really be the first time that the Supreme Court sanctions, if it rules in favor of the charter school, the direct flow of funds from the government and financial support from the government to a religious entity for religious activities,” said Jessie Hill, a law professor at Case Western Reserve University who focuses on the law and religion.
St. Isidore, she said, is asking the state to “quite literally establish a religious school. It’s essentially making a religious school, creating an affiliation between the religious entity and the state that we haven’t seen before.”
A decision follow the Supreme Court’s three rulings in recent years that were in favor of religious plaintiffs, which all allowed public funds to be used for religious institutions. But backers of St. Isidore argue that its position is simply an application of those decisions and would not create any new principles.
“The unifying thread is the idea that once the government decides to open up a program and to distribute benefits or to contract with people, it can’t single out religious people or institutions for special disadvantage,” said Richard Garnett, a professor at Notre Dame Law School who directs its Program on Church, State and Society.
The formation of a Catholic charter school
Oklahoma has offered charter schools within its public education system since 1999 and, like 44 other states and the federal charter school program, requires the institutions to be “nonsectarian in its programs, admission policies, employment practices, and all other operations.” The state has at least 30 charter schools that serve more than 50,000 students, and they received $314 million from the state and $69 million in federal funds in the 2022 to 2023 school year, according to a 2023 report from the Oklahoma State Department of Education.
In January 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa formed the St. Isidore of Seville Virtual Charter School Inc. for the purpose of establishing and operating St. Isidore as a Catholic school, according to court records. That May, St. Isidore applied to the Oklahoma Statewide Charter School Board to establish it as a virtual charter school that “fully embraces the teachings of the Catholic Church’s Magisterium” and “fully incorporates these [teachings] into every aspect of the school.”
The school estimated initial enrollment of 500 students and projected it would receive roughly $2.7 million in state funding for its first year of operation, according to court documents.
Ahead of a vote by the board, Drummond warned against approval of St. Isidore’s application, and said an earlier analysis from his predecessor supporting the school could be “used as a basis for taxpayer-funded religious schools, which is exactly what [St. Isidore] seeks to become.”
Drummond also warned that approving St. Isidore’s application to become a charter school “will create a slippery slope.”
“I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith,” he said. “Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, including even those most Oklahomans would consider reprehensible and unworthy of public funding.”
Still, the charter school board voted 3-2 to approve St. Isidore’s application, and in October 2023, it and the school entered in a contract establishing St. Isidore’s as a charter school.
That month, Drummond sued the board directly in the Oklahoma Supreme Court and asked it to rescind the charter contract and declare St. Isidore’s establishment as a charter school unlawful.
The attorney general prevailed before the state’s highest court, which ruled that because St. Isidore’s is a public charter school, it violated the state’s requirement that those entities be nonreligious, as well as the Establishment Clause of the First Amendment, in part because it would “permit state spending in direct support of the religious curriculum and activities within St. Isidore.”
“The state will be directly funding a religious school and encouraging students to attend it,” the Oklahoma Supreme Court, which split 6-2, found.
The Oklahoma Statewide Charter School Board and St. Isidore’s both asked the Supreme Court to review the decision, and it agreed to do so in January.
A “major breach” in the wall
The Supreme Court, which has a 6-3 conservative majority, has in a string of recent decisions sided with religious families and institutions that challenged state-funded programs for excluding religious beneficiaries as violations of the Free Exercise Clause of the First Amendment.
In 2017, the court said that Missouri violated the free exercise right of Trinity Lutheran Church Child Learning Center when it denied it grant funding to resurface its playground. Then, in 2020, the Supreme Court ruled that Montana could not exclude religious schools from a program providing tax credits to people who donate to scholarships for private-school students. Most recently, in 2022, the Supreme Court said Maine cannot limit a tuition assistance program to nonsectarian schools.
In filings with the Supreme Court, Drummond argued that the justices have drawn a clear line through those decisions: If the state offers tuition assistance that parents can direct to the school of their choosing, it cannot exclude religious private schools. But when it comes to public schools, he said, states can provide a secular education.
Drummond said the Supreme Court has never held that the Constitution’s Establishment Clause allows “direct aid for religious instruction in public schools,” and added that creating and funding a religious public school would violate that provision of the First Amendment.
“Religious education is an invaluable benefit for millions of Americans who choose it,” Drummond wrote. “But our Constitution has never required the creation of religious public schools. There is no basis to change that now.”
He warned that if the Supreme Court rules for St. Isidore, “state funds will pour into religious public charter schools just as they do traditional public schools,” and the firewall between public funds flowing to a school because of private choice versus a direct subsidy would be damaged.
“A ruling for petitioners would eliminate the buffer this court has long enforced between religious instruction and public schools — including in areas where charter schools are the only or default public-school option,” Drummond argued, noting that the issue is direct aid.
A crucial question in the court fight is whether Oklahoma’s charter schools are public schools.
Drummond says they are, because the state’s charter schools have to comply with anti-discrimination laws; they are free, open to all students, created and funded by the state, and are subject to government regulation and oversight regarding curriculum, testing and other issues. And because charter schools are public schools, the attorney general said they are government entities.
But lawyers for the Oklahoma Statewide Charter School Board and St. Isidore disagree. Backing them in the case are Oklahoma’s GOP governor, Kevin Stitt, and the state superintendent of public instruction, Ryan Walters.
The board and school said St. Isidore is a privately operated school providing free publicly funded education through a contract with the state, and the Free Exercise Clause protects its right to participate in the charter school program.
“The state did not design the school. It did not create or encourage St. Isidore’s religious character. It did not appoint any member of St. Isidore’s board. It did not instruct the school to offer an education in the Catholic tradition. And it will not hire or supervise the school’s teachers and administrators,” lawyers for St. Isidore wrote in a filing. “
The restrictions in state law, lawyers said, amount to unconstitutional religious discrimination because Oklahoma is excluding religious observers from otherwise available public benefits and programs. And because the state’s charter school program is neutrally administered, the Establishment Clause doesn’t prevent public dollars from flowing to religious schools.
“This is particularly true when private choice directs government dollars to religious schools,” they said.
Garnett, of Notre Dame Law School, said that public money would only go to St. Isidore if a parent made the choice to send their child to the virtual school.
“If the court thinks that what Oklahoma has done is create a program that private entities are eligible to participate in, then it’s straightforward to say once they do that, they can’t discriminate on the basis of religion,” he said.
But professor Hill, like Drummond, said charter schools are public schools, and warned there’s always been a line where the Supreme Court did not allow the direct flow of government funds to religious schools for religious instruction. She said the case is part of a progression that began with the Supreme Court’s 2017 ruling and comes as traditional public schools are being starved of resources in many states.
“The agenda has been to require, not just allow, direct government funding of religious schools in particular,” she said. “Vouchers are one thing, but I do think it’s a major breach in the wall of separation if the charter school wins.”
Just eight justices will hear arguments in the case, as Justice Amy Coney Barrett has recused herself. Though she did not provide a reason for her stepping aside, it may be because the Notre Dame Law School’s Religious Liberty Clinic is representing St. Isidore.
Barrett taught at Notre Dame before she was appointed to the federal bench and was an adjunct professor at the law school in 2023, according to her most recent financial disclosure report. Barrett is also close friends with Nicole Stelle Garnett, an associate dean at Notre Dame Law School who authored a paper that suggested that as a result of a June 2020 Supreme Court ruling, states with charter schools must permit religious charter schools or risk violating the Free Exercise Clause.
Because of Barrett’s recusal, the Supreme Court could deadlock 4-4. That result would leave in place the ruling from the Oklahoma Supreme Court that found the contract establishing St. Isidore’s as a Catholic public charter school was a violation of state and federal law.
A decision is expected by the end of June or early July.
