Deadlocked Supreme Court won’t force Oklahoma to fund religious charter school

WASHINGTON (CN) — The Oklahoma charter school board cannot open the nation’s first religious charter school, the Supreme Court said on Thursday in an equally divided ruling.

Splitting 4-4, the justices were forced to uphold a lower court ruling nixing St. Isidore of Seville Catholic Virtual School, which would give K-12 students across Oklahoma access to a virtual religious education on the taxpayers’ dime.

Justice Amy Coney Barrett, a Donald Trump appointee, recused herself from the case.

Without a ninth vote, the Oklahoma Supreme Court’s ruling against St. Isidore stands. Gabe Roth, executive director at Fix the Court, praised Barrett’s decision to recuse from the case, saying it demonstrated an exercise in ethical leadership.

“From an institutional and an ethical perspective, it is far better that Justice Barrett sat out this case due to her conflict than exercise a purported ‘duty to sit,’ which would’ve caused an air of bias to hang over it,” Roth said in a statement. “The religious charter school issue will undoubtedly return to the court, and we’ll know Justice Barrett’s views soon enough. In the meantime, I hope this example of putting ethics first is a sign of things to come.”

Barrett didn’t explain her absence, but she is friends and used to teach with Notre Dame law professor Nicole Garnett, who has been an adviser to the school.

The conflict at the center of the case was whether Oklahoma’s charter schools were public schools. Oklahoma said they were, arguing that St. Isidore would violate the establishment clause, which prohibits government-sanctioned religion.

St. Isidore and the state’s charter school board disagreed, focusing on charter schools’ private ownership. They argued that barring St. Isidore from participating in the program violated the First Amendment’s free exercise clause.

Over the last decade, the Supreme Court has favored the free exercise clause over establishment clause concerns. In 2017, the Supreme Court ruled that excluding churches from a nonsecular aid program was unconstitutional in Trinity Lutheran v. Comer .

A few years later, the justices would allow nonsecular scholarships to be used at a Christian school in Espinoza v. Montana and approve the use of school vouchers at religious schools in Carson v. Makin .

The court’s conservative wing appeared to favor St. Isidore’s arguments in April. Justice Brett Kavanaugh, a Trump appointee, said St. Isidore was a natural extension of precedent favoring religious expression.

Justice Samuel Alito, a George W. Bush appointee, said that Oklahoma’s opposition to St. Isidore was “motivated by hostility to religion.” Alito and Kavanaugh connected the state’s prohibition on nonsecular schools to anti-Catholic sentiment of the 19th century.

Justice Clarence Thomas, a George H.W. Bush appointee, saw a disconnect between Oklahoma and St. Isidore. Thomas viewed the relationship as a contract between the Catholic Church — a private entity — and the state.

The Archdiocese of Oklahoma City and the Diocese of Tulsa formed a non-profit corporation in 2023 to establish St. Isidore as a Catholic school. St. Isidore would participate in the evangelizing mission of the church and incorporate its faith and morals into the school’s curriculum.

Like other charter schools, St. Isidore would have been open to all students, who would be expected to adhere to Catholic teachings.

St. Isidore claimed that it didn’t fit into the mold of traditional public schools because it was privately created and privately run. Charter schools offer diverse educational opportunities to the public school system, St. Isidore claimed, but Oklahoma “deemed religion to be the wrong kind of diversity.”

The Oklahoma school board approved St. Isidore’s application, but the nation’s first religious charter school never opened. Oklahoma Attorney General Gentner Drummond sued to cancel St. Isidore’s charter contract, arguing that endorsing public funds for religious education would change the definition of public education.

“Teaching religion as truth in public schools is not allowed,” Gregory Garre, an attorney with Latham & Watkins representing the state, said during oral arguments.

Charter schools are operated by private entities, but their curriculum must meet state requirements. Oklahoma said its charter school program was modeled after the federal statute that provides funds for state initiatives, warning that endorsing St. Isidore would invalidate the federal program.

The liberal justices coalesced around Oklahoma’s arguments. Justice Sonia Sotomayor, a Barack Obama appointee, worried that the state would be forced to regulate religious views that conflict with nonsecular education.

Far from being discriminated against, Justice Ketanji Brown Jackson, a Joe Biden appointee, said that St. Isidore wanted a contract giving it special privileges not afforded to other charter schools.

“What they want to do is come in and get a contract that is tailored to their own terms that includes religious education, and the state says that’s not the benefit that we’re offering here,” Jackson said during oral arguments.

Even if some religions could comply with state curriculum requirements, Justice Elena Kagan, an Obama appointee, warned that other faiths that couldn’t would be excluded, creating a group of “accepted establishment religions.”

It appeared the vote could have come down to Chief Justice John Roberts, a Bush appointee. During oral arguments, Roberts suggested that St. Isidore didn’t fit neatly into the court’s precedents, marking a more comprehensive entanglement between church-state relations. However, Roberts was also concerned that finding charter schools to be state actors would upend funding for religious charities and other groups.

Neal McCluskey, the director of Cato’s Center for Educational Freedom, wasn’t shocked by the ruling.

“While we do not know which justices voted for or against the Catholic charter school, Chief Justice Roberts indicated early on in oral arguments that he saw religious charter schooling as more complex than school choice programs that allow families to use public funds at private schools,” McCluskey said in a statement.

While the precedents cited by St. Isidore concerned taxpayer funds and religious education, McCluskey said a religious charter school involved much more direct government involvement than simply funding family choices.

“Roberts was likely the swing conservative vote, and while this decision does not establish precedent, it potentially sends an important message: The right way to address discrimination against religion by our public education system is through private school choice programs, not charters,” McCluskey said.

Oklahoma Superintendent of Public Instruction Ryan Walters expressed disappointment after the high court’s ruling, claiming that it allowed discrimination against St. Isidore to continue.

“Allowing the exclusion of religious schools from our charter school program in the name of 19th century religious bigotry is wrong,” Walters said in a statement. “As state superintendent, I will always stand with parents and families in opposition to religious discrimination and fight until all children in Oklahoma are free to choose the school that serves them best, religious or otherwise.”

Rachel Laser, president and CEO of Americans United for Separation of Church and State, said that the high court stalemate safeguards public education and charter schools must continue to operate as secular schools.

“St. Isidore of Seville Catholic Virtual School, which planned to discriminate against students, families, and staff and indoctrinate students into one religion, cannot operate as a public charter school,” Laser said. “A religious public school would be an abject violation of religious freedom.”

St. Isidore did not immediately respond to a request for comment following the ruling.

Follow @KelseyReichmann Follow @kelseyreichmann.bsky.social