Supreme Court seems open to a religious charter school in Oklahoma

Boston Globe

30-04-2025

The Oklahoma school, St. Isidore of Seville Catholic Virtual School, is to be operated by the Archdiocese of Oklahoma City and the Diocese of Tulsa, and it aims to incorporate Catholic teachings into every aspect of its activities.
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After Oklahoma's charter school board approved the proposal to open St. Isidore, the state's attorney general, Gentner Drummond, sued to stop it. Drummond, a Republican, said a religious public school would violate the First Amendment's prohibition of government establishment of religion and the state constitution's ban on spending public money to support religious institutions.
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The justices appeared to be divided along the usual ideological lines, with the court's Republican appointees largely sympathetic to the school and its Democratic ones quite wary. But Justice Amy Coney Barrett recused herself from the case, raising the possibility of a tie vote if a single Republican appointee joined the three Democratic ones. That would leave a state court decision rejecting the school intact.
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Chief Justice John Roberts, who asked questions supportive of both sides, seemed to be the most likely member of such a potential alliance.
In earlier cases from Maine and Montana, the court ruled that states that decide to create programs to help parents pay for private schools must allow them to choose religious ones. Those decisions, Roberts said, 'involved fairly discrete state involvement,' while Oklahoma's supervision of the new school 'does strike me as much more comprehensive involvement.'
Later in the argument, though, he suggested that another of the court's decisions required allowing the school.
A ruling in favor of the school could affect laws in 46 other states that authorize charter schools, said Gregory G. Garre, a lawyer for Drummond. It would also, he added, blur a line established in earlier Supreme Court cases distinguishing between government money provided to parents to spend on private schools, including religious ones, and government support provided directly to religious schools.
The dispute is the third major case dealing with religion to be argued before the justices in the space of about a month. In March, the court seemed poised to rule that a Catholic charity in Wisconsin was entitled to a tax exemption that had been denied by a state court on the grounds that the charity's activities were not primarily religious. Last week, the court signaled that it was most likely to rule that parents with religious objections may withdraw their children from classes in which storybooks with LGBTQ+ themes are discussed.
Since 2012, when the court unanimously ruled that religious groups were often exempt from employment discrimination laws, the pro-religion side has won all but one of the 16 signed decisions in argued cases that concerned the First Amendment's religion clauses.
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Much of Wednesday's argument centered on the factual question of whether St. Isidore had been created and would be controlled by the state, making it a public school.
Lawyers for St. Isidore and the state agency that had approved it said the school was privately created and would be independently operated.
But Justice Elena Kagan said that St. Isidore and charter schools like it have many hallmarks of 'regular public schools.'
'They accept everybody,' she said. 'They're free. They can be closed down by the state. There's a good deal of curricular involvement by the state, approvals by the state. They have to comply with all the state standards.'
Justice Neil Gorsuch suggested that St. Isidore was sufficiently independent of Oklahoma but said other states could exert more control by, for instance, requiring public officials to serve on charter schools' boards.
D. John Sauer, in his first argument as US solicitor general, argued in favor of St. Isidore on behalf of the Trump administration.
'Participation in charter schools is mediated through two layers of private choice, both of the applicants who create the schools and the parents who choose to send their children to them,' he said. 'Oklahoma does not control their programs, staffing, or curriculum.'
Garre said that a decision in favor of St. Isidore 'would result in the astounding rule that states not only
may
but
must
fund and create public religious schools, an astounding reversal from this court's time-honored precedents."
Kavanaugh took the opposite view. 'All the religious school is saying is, 'Don't exclude us on account of our religion,'' he said, adding, 'You can't treat religious people and religious institutions and religious speech as second class in the United States.'
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Barrett recused herself from the case, but did not say why. She is a former law professor at University of Notre Dame, whose religious liberty clinic represents the charter school, and is close friends with Nicole Garnett, a professor there who has assisted St. Isidore.
The school said it would welcome students of 'different faiths or no faith.' It was less categorical about teachers, saying that all Oklahoma charter schools are free to adopt their own personnel policies.
The state's Supreme Court ruled against the school, with the majority saying it would 'create a slippery slope' that could lead to 'the destruction of Oklahomans' freedom to practice religion without fear of governmental intervention.'
'St. Isidore is a public charter school,' the majority said, noting that the state law allowing such schools requires them to be nonsectarian. 'Under both state and federal law,' the majority ruled, 'the state is not authorized to establish or fund St. Isidore.'