Divided Supreme Court affirms Oklahoma decision to block nation’s first religious charter school

The Supreme Court on Thursday let stand an Oklahoma Supreme Court ruling blocking what would have been the nation’s first religious charter school.

The court deadlocked 4-4 on the case, which means it affirmed, without issuing an opinion, the lower court decision that blocked St. Isidore of Seville Catholic Virtual School from participating in Oklahoma’s charter school program. Justice Amy Coney Barrett recused herself from the case.

The ruling is not a binding precedent under court rules, but it does suggest deep divisions. Although advocates saw religious liberty issues at play, the case also went to the heart of charter schools and whether they are mainly public or private institutions.

Civil liberties groups hailed the decision as a victory.

“The Supreme Court’s ruling affirms that a religious school can’t be a public school and a public school can’t be religious,” said Daniel Mach, director of the American Civil Liberties Union Program on Freedom of Religion and Belief.

It was the latest in a string of rulings testing the boundaries between the First Amendment’s prohibition on an “establishment” of religion for government and its guarantee of “free exercise” of religion for individuals.

In 2017, the Supreme Court ruled that a Missouri program to refurbish playgrounds couldn’t refuse applications from churches. In a 2020 case, the court said Philadelphia couldn’t refuse to do business with a Catholic-run adoption agency.

In a 2022 case, the high court said Maine couldn’t prevent state-funded tuition from going toward religious private schools.

During oral arguments, Chief Justice John G. Roberts Jr. said St. Isadore’s situation may differ because the government has “much more comprehensive involvement” with a charter school.

He said the adoption agency case seemed to set the standard.

“We held they couldn’t engage in that discrimination,” said the chief justice, a George W. Bush appointee. “How is that different than what we have here? We have an education program, and you want to not allow them to participate with a religious entity?”

Neal McCluskey, director of the Cato Institute Center for Educational Freedom, said the chief justice likely cast the deciding vote, siding with the court’s three Democratic appointees.

“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,” said Mr. McCluskey.

James A. Campbell, an Alliance Defending Freedom legal counsel representing the Oklahoma Statewide Charter School Board, said the justices could be asked to weigh the religious charter issue again because precedent was not set.

“Oklahoma parents and children are better off with more educational choices, not fewer. While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future,” Mr. Campbell said.

Oklahoma Attorney General Gentner Drummond, who had challenged the opening of the school, celebrated the ruling.

“The Supreme Court’s decision represents a resounding victory for religious liberty and for the foundational principles that have guided our nation since its founding,” he said. “This ruling ensures that Oklahoma taxpayers will not be forced to fund radical Islamic schools, while protecting the religious rights of families to choose any school they wish for their children.”

Charter schools are publicly funded but don’t operate as traditional public neighborhood schools.

St. Isidore argued that charter schools are private contractors, not state actors. The school said it was discrimination to block its application when the state allows other charter schools to focus on topics such as language immersion, science and math, and American Indian culture.

Mr. Drummond said charter schools are funded entirely with public money and would be public actors.

During oral arguments last month, Justice Sonia Sotomayor said the court had long held that the government could not pay to teach religion. She said St. Isidore required students to attend Mass and teachers to adhere to the Catholic faith.

“Your school doesn’t just want to be a charter school; it wants to be a religious charter school,” Justice Sotomayor, an Obama appointee, told the school’s attorneys.

The school’s opponents had warned that a ruling for St. Isidore could have a chilling effect on charter school programs, with some states perhaps deciding to scrap the idea rather than approve religious school applications.

Justice Barrett did not give a reason for her recusal, though court watchers speculated that it was because she knows one of the advocates involved in the dispute.

The two cases, which were consolidated, were Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond.