There are two distinct legal questions before the U.S. Supreme Court as it hears arguments this week in a major case over a religious charter school in Oklahoma. Both are infused with deep ideological divides over the legacy of private religious education in the United States, the more recent history of charter schools and choice in public education, and the future landscape of public and private schooling.
The first question in is whether a public charter school run by a private organization, whether a church or some other nonprofit organization, is a 鈥渟tate actor鈥� or acting with government authority in most of what it does. That goes to the question of whether charter schools are genuinely public schools, an idea most charter advocates have always thought was a given.
鈥淚f the Supreme Court makes the decision that says that charter schools are private schools, that has widespread and potentially devastating consequences for charter schools in 46 states,鈥� said Starlee Coleman, the president and CEO of the National Alliance for Public Charter Schools, which has filed a friend-of-the-court brief urging against that conclusion.
The second question is whether a state violates the First Amendment鈥檚 guarantee of free exercise of religion if it excludes a privately run religious school from its charter program or whether a state may justify such an exclusion based on an intention to avoid an establishment of religion that would violate either the federal or state constitutions.
The lawyers for the St. Isidore of Seville Catholic Virtual School, which would be sponsored and controlled by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, argue that the school is a private entity that would enroll students鈥攁nd receive state funding of as much as $2.7 million in its first year鈥攐nly through the private choices of families.
鈥淭he [First Amendment鈥檚] establishment clause thus has no role here,鈥� . 鈥淏ut the free exercise clause prohibits the state from denying St. Isidore and its future students this opportunity solely because it is religious.鈥�
One justice鈥檚 recusal could prove consequential
The case is one of the most anticipated of the term and will be argued on April 30, which was to have been the Supreme Court鈥檚 last day of arguments for its current term. (The court has added a May 15 argument to its calendar to address issues stemming from President Donald Trump鈥檚 executive order on birthright citizenship.)
Justice Amy Coney Barrett has recused herself from participating, without explanation, as is customary鈥攂ut most likely because of her 18 years of service as a full-time professor at the University of Notre Dame Law School.
Notre Dame鈥檚 religious-liberty clinic represents St. Isidore in the high court, and Barrett is a longtime friend of Notre Dame law professor Nicole Garnett, who worked to help develop the Catholic charter school in Oklahoma.
Her absence leaves only eight justices participating and the possibility of a 4-4 tie, which would affirm, without setting a national precedent, the decision of the Oklahoma Supreme Court.
That court that St. Isidore would violate both the federal establishment clause and a state constitutional provision that bars Oklahoma from using public money for the benefit or support of any religious institution. The court also ruled that St. Isidore, like other charter schools in the state, is a governmental entity under the state charter law and a state actor engaged in public functions, effectively defining it as a public school.
That decision halted St. Isidore鈥檚 planned fall 2024 opening and was appealed to the U.S. Supreme Court by both St. Isidore and the Oklahoma Statewide Charter School Board, the successor to a separate state panel focused on virtual charter schools that had voted to approve the religious charter in 2023.
The state鈥檚 virtual charter board disregarded the recommendation of Oklahoma Attorney General Gentner Drummond, a Republican who had said in a legal advisory that the state could not approve a religious charter school and doing so would be a 鈥渟lippery slope鈥� that would compel the state to fund similar schools organized by all manner of faith-based groups. Drummond later asked the state supreme court to intervene.
Thus, in the U.S. Supreme Court, it is one Oklahoma entity鈥� (along with St. Isidore)鈥攁gainst Drummond, who, as attorney general, represents the state鈥檚 official position in the case.
Several other key state officials have aligned with St. Isidore. A , a Republican, argues that Drummond is attacking 鈥渞eligious liberty and educational freedom.鈥�
鈥淏y prioritizing religion-free education, so-called 鈥榮ecular鈥� public schools provide an education that is far from neutral,鈥� Stitt鈥檚 brief says.
State schools chief Ryan Walters, a Republican who has said he is seeking to bring God and prayers back to public schools in Oklahoma, supporting St. Isidore.
鈥淚n carrying out his responsibilities in formulating education policy for the state[,] Mr. Walters considers it a duty of his office to protect the free exercise of religion for all Oklahomans,鈥� says the brief.
Allies of St. Isidore point to history and other public-private partnerships
St. Isidore and its supporters have numerous other allies in the Supreme Court, including the U.S. Conference of Catholic Bishops, other Christian and Jewish religious and legal groups, and others.
President Donald Trump鈥檚 administration is behind religious charter schools, and U.S. Solicitor General D. John Sauer will make his debut appearance in that post, arguing in support of St. Isidore.
Eric Treene, an adjunct law professor at the Catholic University of America in Washington, submitted a brief arguing that the idea of free public education as an exclusively government function is not supported by history.
鈥淭here鈥檚 long been a mix of public and private delivery of what we call public education, whether it鈥檚 the common schools back in the in the 1800s or if we鈥檙e talking about today about school choice, tuition tax credits, and other things,鈥� Treene said in an interview.
Public schools in the 19th century were essentially 鈥渘ondenominational Protestant schools,鈥� he said, with prayers and Bible reading continuing in many until the Supreme Court decisions of the 1960s.
罢谤别别苍别鈥檚 , for the Christian Legal Society and the National Association of Evangelicals, also argues that religious organizations that provide critical social services do not become state actors merely by accepting government funds.
Andy Smarick, a senior fellow with the Manhattan Institute, which has also filed in support of St. Isidore, made a similar point at an April 16 debate over the religious charter school case at the American Enterprise Institute in Washington.
鈥淧rivate entities partner with the government to accomplish public goals all the time,鈥� he said. 鈥淚n these cases, the nonprofit retains its private character in most cases. It does not become a government entity.鈥�
Smarick also argued that the impact of a Supreme Court ruling for St. Isidore would be less transformative than opponents suggest.
鈥淪ome people think that this would upend public education. Far from it,鈥� he said. 鈥淚 suspect that about 1 percent of charters would be faith-based after a decade.鈥�
Oklahoma attorney general raises concerns on federal charter law and civil rights
On the other side of the case, Drummond has hired Gregory G. Garre, a Supreme Court appellate specialist and a former U.S. solicitor general, to argue the state鈥檚 case. One of the first points Drummond and Garre make in is that Oklahoma鈥檚 charter school law tracks the language of the 45 other state charter laws and the statute authorizing the federal Charter School Program, which has provided billions of dollars to charters since the early 2000s.
If Oklahoma鈥檚 charter law violates the First Amendment鈥檚 free exercise clause, that 鈥渟omehow escaped the attention of the Congress that passed the federal charter-school law鈥� and the administration of President George W. Bush, which implemented it, the brief says. (Garre was a solicitor general under Bush.)
鈥淎 ruling that Oklahoma鈥檚 charter-school law unconstitutionally discriminates against religion would upend the federal [Charter School Program] and charter-school laws nationwide, sowing chaos and confusion,鈥� the brief says.
Meanwhile, a decision requiring states to establish religious charter schools either 鈥渨ould subject religious institutions to regulations from which they are typically immune, or grant religious charter schools a special status,鈥� such as exempting them from laws against LGBTQ+ discrimination that schools such as St. Isidore have argued are inconsistent with their religious views, the brief says.
Many of Drummond鈥檚 allies in the case do not accept the view that a decision opening the door to religious charter schools would have only a minimal effect on the landscape of charters and public education at large.
鈥淚t would be a sea change for our democracy to allow public schools to be religious,鈥� Rachel Laser, the president of Americans United for Separation of Church and State, which helped write a on behalf of Oklahoma parents opposed to St. Isidore, said in an interview. 鈥淩eligious public schools will divide our communities in ways that are unproductive and dangerous for our country.鈥�
Coleman鈥檚 group, the National Alliance of Public Charter Schools, filed outlining the roughly 30-year history of such independent public schools and the longtime understanding of them as public schools. And most major public education groups, including the American Federation of Teachers, National Education Association, National School Boards Association, and AASA, the Superintendents鈥� Association, argue in that traditional public schools would be harmed by the idea of religious charters.
Derek W. Black, a law professor and education law expert at the University of South Carolina, said at the American Enterprise Institute event that religious charter school supporters want to 鈥渕uddy up the waters of what a charter school is enough to convince us that the Constitution actually requires the state to pay for religious education. But in a constitutional democracy, there are some things that we don鈥檛 put to a popularity contest.鈥�
Black, who organized a against St. Isidore, said the First Amendment鈥檚 prohibition on government establishment of religion still stands for the idea that the government 鈥渟hall not collect taxes from citizens and deposit them into the coffers of churches. It shall not offer private parties the power of the state to coerce citizens into religious ideas and activities, and that鈥檚 what a religious charter would do.鈥�
