Supreme Court majority seems open to religious public charter schools

Washington Post

30-04-2025

A divided Supreme Court on Wednesday appeared open to allowing the creation of the nation's first public religious charter school in Oklahoma, a blockbuster move that could reshape American education and redraw the boundary between church and state.
A ruling for St. Isidore of Seville Catholic Virtual School for the first time would allow direct and complete taxpayer funding to establish a faith-based school, sanctioning government sponsorship of a curriculum that calls for students to adhere to Catholic beliefs and the church's religious mission.
The change could have vast — and unpredictable — implications for both parochial, charter and traditional public schools, likely sparking efforts to create similar schools in other states. It would also supercharge a push by the conservative majority on the Supreme Court to give religion new prominence in public life.
During oral argument Wednesday over the legality of St. Isidore, sharp ideological differences emerged among the justices.
While all three liberals expressed deep skepticism about a religious charter school, there was no clear indication that any conservative members of the court would join them in voting against the proposal. Justice Brett M. Kavanaugh signaled his support, saying that excluding religious schools from the charter school program 'seems like rank discrimination.'
'Our cases have been very clear,' he said, referring to recent rulings that have expanded when it's permissible to use tax dollars for religious education. 'I think those are some of the most important cases we've had, of saying you can't treat religious people and religious institutions and religious speech as second class in the United States.'
Chief Justice John G. Roberts Jr., who is almost always in the majority in major cases, asked probing questions of both sides. But Roberts has consistently sided with religious parties to expand the role of faith in public life.
A decision is expected by summer.
The court's liberals pointedly questioned the attorneys supporting the creation of St. Isidore, indicating that they view religious public schools in a far different light than government funding for private school vouchers or infrastructure projects.
Justice Sonia Sotomayor said the essence of the First Amendment's prohibition on government establishment of religion is 'we're not going to pay religious leaders to teach their religion.' St. Isidore's, she said, would use public money to pay Catholic leaders and Catholic teachers. 'You can only be a teacher in this school if you're willing to accept the teachings of the Catholic Church.'
Supporters say denying direct public funding to public charter schools amounts to anti-religious discrimination since states allow public money to flow to other types of charter schools. They also say the schools will give parents greater educational choices for their children.
But detractors say such schools would be a fundamental violation of the separation of church and state, could sap dollars from traditional public schools and could lead to discrimination against religious minorities, nonbelievers and LGBTQ+ students.
The Archdiocese of Oklahoma City and the Diocese of Tulsa are seeking to establish St. Isidore's as an online-only school that would educate up to 500 students in grades K-12 in its first year. The school would serve students with special needs and those in rural Oklahoma who do not have access to brick-and mortar parochial schools. The idea grew out of pandemic experiments with online learning.
St. Isidore's would be open to students of all faiths and abide by state antidiscrimination rules, but school materials say 'admission assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school.' Students are also required to attend Catholic Mass and 'support the [religious] mission of the School.'
Much of the argument Wednesday turned on the question of whether religious charter schools are public or private schools. The answer is significant because the government can require public schools to be non-sectarian, but it can't restrict private schools from teaching religion.
While school vouchers help pay for private religious schools in some states, charter schools have long been defined as public schools — even though they can be operated by private entities and have more independence than traditional public schools. All 47 states and the District of Columbia that allow charters require they be non-sectarian — but that would likely change if the Supreme Court approves St. Isidore's.
Some education experts say a ruling for the school could result in an explosion of new religious public charter schools, while supporters expect such a ruling to have more incremental effects. Some also predicted a decision for the school might push liberal states to pull back on charter school authorization programs since many would likely be uncomfortable with public money going to religious schools.
Proponents of St. Isidore's say the conservative majority on the Supreme Court opened the door to religious public charter schools in a series of rulings over the last decade that broke down the high church-state wall that existed in recent decades.
In 2017, the court found that Missouri could not exclude a religious preschool from a playground resurfacing program. In a 2020 Montana case, the court required states that aid private schools to include some faith-based ones in that funding. In 2022, the court required Maine to let parents use vouchers for religious schools. The same year, it let a high school football coach pray on a school field.
Chief Justice John G. Roberts Jr. concluded in the Montana case: 'A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.'
Justin Driver, a Yale law professor and an expert on education law, said the jurisprudence has recalibrated the Constitution's traditional balance between religion and secularism laid out in the First Amendment. The free exercise clause prohibits the government from interfering with the right of individuals to practice religion, while the establishment clause prevents the government from establishing an official religion or favoring faith over nonbelief.
'This Oklahoma case is the potential culmination of the Roberts court effort to cast the free exercise clause in the starring role in our Constitutional order,' Driver said. 'And offer the establishment clause only a cameo.'
The case arrived at the Supreme Court after a long — and sometimes bitter — fight that divided Republicans in Oklahoma, one of the nation's most conservative states. Catholic officials first floated the idea for the school in 2021, before it was narrowly approved by the state's virtual charter board in 2023 after significant debate and controversy.
The ACLU, Americans United for Separation of Church and State, and others then sued on behalf of a group of Oklahoma residents, asking for the approval to be overturned. They argued that their tax dollars should not go to a school that might discriminate against gay students and those of other faiths.
Oklahoma's Republican attorney general, Gentner Drummond, then filed his own suit against the virtual charter school board, arguing the contract it signed with St. Isidore violated the state's constitution. The Oklahoma Supreme Court sided with Drummond last year, and the contract was rescinded. St. Isidore's backers then asked the Supreme Court to take up the case.
Justice Amy Coney Barrett, who is close friends with the Notre Dame University law professor who helped shepherd St. Isidore, recused herself from the case. That means only eight justices will vote on the legality of the school.
A 4-4 tie that would keep the state Supreme Court rejection of the school in place, but none of the five conservatives on the bench yesterday demonstrated clear support for the lower court rulings that barred St. Isidore's.
This is a developing story. It will be updated.
Daniel Wu contributed to this report.