The US Supreme Court is considering for the first time whether states must allow religious institutions to be part of their taxpayer-funded public charter school programs. Its decision is likely to turn on whether a majority of the justices think St. Isidore of Seville Catholic Virtual School is purely private or if it’s a public school largely controlled by the state of Oklahoma. Legal scholars say the case being argued April 30 is a direct challenge to church and state separation that could drastically change US public education.
“What’s at stake is the survival of our public school system as it now exists,” said Alex Luchenitser, associate legal director at Americans United for Separation of Church and State. The group filed a brief on behalf of public-school parents, educators, advocates, clergy, and taxpayers in the state supporting a ruling against the school. “This is an effort to create a religious public school,” he said.
Discrimination Claim The Catholic virtual charter school that the Archdiocese of Oklahoma City and the Diocese of Tulsa proposed, and the charter school board approved, was under contract until the state supreme court ruled it unlawful. Siding with the Oklahoma attorney general, the state’s top court said St. Isidore is a government entity that’s subject to the requirements of the state and US constitutions, which prohibit the state from using public money for the establishment of a religious institution. St. Isidore and the school board are now asking the justices in cases the court consolidated to reverse that ruling.
They argue the state is unconstitutionally discriminating against St. Isidore because it’s religious. The Supreme Court in three cases over the past eight years established the principle that when a state creates a program and invites private organizations to participate, it can’t exclude religious groups, said Jim Campbell, chief legal counsel at Alliance Defending Freedom. The alliance is representing the charter school board.
“St. Isidore is a private entity, participating in a public program, and has constitutional rights that need to be respected,” he said. Campbell was referring to the court’s 2017, 2020, and 2022 rulings in Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, respectively.
While Trinity Lutheran dealt with state grants for nonprofit organizations to resurface their playgrounds, Espinoza and Carson centered on state education assistance used for private schools. In all three, the court said the states were violating the First Amendment’s free exercise clause by barring funds from going to religious institutions. “The Supreme Court, in many cases, has said that just because you contract with the government, just because you get government money, none of those things mean you turn into the government,” he said.
Legal scholars on the other side of this issue, however, say there is a distinction between those cases and what’s happening in the Oklahoma charter school case. “While the Supreme Court has become increasingly friendly toward funds flowing to religious organizations, including religious schools, it’s always kind of drawn the line at direct government funding,” said Jessie Hill, a Case Western Reserve University School of Law professor who teaches law and religion This is direct public money going to a religious school that “doesn’t even exist yet,” she said. “The state would be setting up the school, literally establishing a religious organization.” Hill was part of a brief filed by scholars of the First Amendment’s religious clauses that urged the court to uphold the state supreme court ruling.
The state supreme court agreed the trilogy of cases deal with private institutions and don’t apply. “St. Isidore is a state-created school that does not exist independently of the State,” the court said.
Greater Accommodation The April 30 case is one of three challenging the free exercise of religion this term that presents an opportunity for the court’s conservative majority to expand the role of religion in public life. The court has been asked to decide if parents can opt their kids out of public school curriculum when it violates their religious beliefs and to what extent states can limit a tax exemption for religious employers. “It’s very particular matters but, taken collectively, they could represent the continuation of a trend in favor of growing religious freedom and a movement toward greater accommodation in the public square,” said Brandon Paradise, a Rutgers Law School professor who’s an expert in religion and the First Amendment.
While opponents say the court under Chief Justice John Roberts’ leadership has weakened the clause in the Constitution that prohibits the government from establishing or favoring one religion, religious rights advocates see it as attempting to restore balance with the right to practice religion freely. Walter Weber, senior counsel at the American Center for Law and Justice, which has filed a brief in all three cases this term supporting the religious challengers, said there’s a lot of historical scholarship suggesting the establishment clause has been over read. “The free exercise clause is making, I guess you could say, a comeback,” he said.
The case is Oklahoma Statewide Charter School Board v. Drummond, U.S., No. 24-394.
