The education landscape is rapidly changing as families and state lawmakers respond to recent Supreme Court rulings that cleared the way for private religious schools to receive more public money.
On Wednesday, the court will hear a case that could bring further disruption, which centers on a plan to establish the nation’s first religious charter school in Oklahoma.
The online school, St. Isidore of Seville, would serve students of all faiths but be built on Catholic principles. Like other charter schools, it would be funded by taxpayers. Unlike them, it would openly promote religion.
The Oklahoma Statewide Charter School Board has approved St. Isidore’s request to participate in the state’s charter school program, despite a state ban on sectarian charter schools.
Now, the board must defend that decision in front of the Supreme Court, which is considering what the First Amendment has to say about religious charter schools.
Case background
One factor that makes the religious charter school case unique is the location of the battle lines.
Rather than pitting conservatives against liberals or religious organizations against government officials, it puts a spotlight on tension within the Republican Party in Oklahoma and nationwide.
While Oklahoma’s Republican governor and state superintendent support the creation of St. Isidore of Seville Catholic Virtual School, the state’s Republican attorney general is the one who brought the case that’s now in front of the Supreme Court.
Attorney General Gentner Drummond sued to block the creation of the school in 2023, arguing that it would violate Oklahoma state law and the U.S. Constitution.
He said past Supreme Court rulings enabling state-funded scholarships and vouchers to go to religious schools don’t apply to the charter school context.
Last June, the Oklahoma Supreme Court ruled in favor of Drummond, upholding the state’s ban on sectarian charter schools and determining that allowing a charter school to hire based on religion and evangelize to students would violate the Constitution’s establishment clause.
St. Isidore and the Oklahoma Charter School Board appealed the decision to the U.S. Supreme Court, which announced in January that it would hear the case.
The justices will consider whether creating a religious charter school unlawfully entangles the government with a religious institution and what role the free exercise clause plays in the debate.
First Amendment tension
The free exercise question is significant, because the Supreme Court decided three recent faith-related funding cases on free exercise grounds.
- In 2017, the court cited the free exercise clause in a ruling in favor of a religiously affiliated preschool. The majority opinion said the state of Missouri could not use religion as a reason to exclude organizations from a program offering free playground resurfacing.
- In 2020, the court again emphasized the free exercise clause in a case on taxpayer-funded scholarships in Montana. Rather than accept state officials’ arguments about the need to avoid entanglement with religious organizations, the 5-4 majority accused officials of discriminating against people of faith and ruled that if a state chooses to use scholarships to subsidize private education, then it must allow religious schools to take part.
- In 2022, the Supreme Court built on that 2020 ruling in a case about a voucher program in Maine. The 6-3 majority said the state’s effort to prevent residents from using tuition assistance payments at religious schools violated the free exercise clause.
Those decisions paved the way for the arguments over St. Isidore of Seville Catholic Virtual School in Oklahoma. The school was proposed in large part because Catholic leaders believed they could take their plan to launch a first-of-its-kind religious charter school to the Supreme Court — and win, according to The Washington Post.
Briefs filed in support of St. Isidore and the charter school board are peppered with references to the recent funding rulings and argue that if faith-based limits on voucher or scholarship programs amount to religious discrimination, then so does blocking the formation of a religious charter school.
“Nobody disputes that St. Isidore meets all the secular requirements for participating in Oklahoma’s charter school program. Yet, Oklahoma law excludes otherwise eligible schools on the basis of their religious exercise. That discrimination violates the First Amendment,” reads the final brief from St. Isidore of Seville.
Drummond and other opponents of the concept of a religious charter school are certainly aware of the past rulings, but they say the charter school proposal is fundamentally different than the funding programs at the center of past cases.
St. Isidore would violate other past decisions on school prayer and religious instruction, they say.
“This Court has held that the First Amendment bars religious prayer and instruction in public schools. Certainly that would include the education that St. Isidore seeks to offer students,” reads the final Supreme Court brief from Drummond’s camp.
The brief argues that religious private schools in Oklahoma can and should access various public benefits, but they shouldn’t be allowed to operate as charter schools, which are treated as public schools in Oklahoma and across much of the country.
“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," the brief says.
What’s at stake?
As the Drummond brief notes, a Supreme Court ruling in favor of St. Isidore and the Oklahoma Charter School Board could reshape public education nationwide. The parties involved in the case don’t agree on whether that would be a problem.
To St. Isidore’s leaders and their supporters, a ruling in favor of the Catholic charter school would do away with discriminatory funding restrictions and ensure that even rural religious families have multiple education options.
To Drummond and his supporters, such a ruling would dangerously entangle the government with a school that uses a faith-based curriculum and lead to future lawsuits over whether the state can have any say over how the school operates.
All six justices who were in the majority in the 2022 ruling on education funding in Maine are still on the court, but only five will take part in the case.
Justice Amy Coney Barrett recused herself without explanation. It’s possible that she felt too close to the issue, since the idea for St. Isidore likely originated at Notre Dame, where she used to work, The Washington Post reported.
In the absence of Barrett, Drummond’s team will need to convince only one conservative justice to join the Supreme Court’s three liberals in order to force a 4-4 tie.
In the event of a tie, the lower court ruling against St. Isidore and the Oklahoma Charter School Board would remain in place.
Wednesday’s oral arguments in the case will begin at 8 a.m. MDT. The Supreme Court’s decision is expected by early July.