The Supreme Court on Wednesday heard arguments in one of the most closely watched cases of the current term, a battle over a first-of-its-kind religious charter school that’s been proposed in Oklahoma.
The case pits St. Isidore of Seville Catholic Virtual School and the Oklahoma Statewide Charter School Board, which has approved it, against Oklahoma’s Republican attorney general, who has criticized the school board’s actions and objects to the school.
Attorney General Gentner Drummond and other opponents of St. Isidore say using taxpayer money to fund a school built on religious values that plans to proclaim religious messages would violate Oklahoma state law and the U.S. Constitution.
The school’s supporters have also raised constitutional concerns, but they’re calling for a very different Supreme Court ruling. They say banning religious charter schools amounts to religious discrimination.
Drummond’s opposition to St. Isidore puts him at odds with other top Republicans in Oklahoma. The case is fueling infighting among legal scholars, religious freedom advocates and education leaders nationwide.
Religious charter school case
Although St. Isidore aims to become the nation’s first religious charter school, its supporters’ arguments aren’t new. They’re drawn from several recent Supreme Court cases on the First Amendment’s free exercise clause.
In three rulings over the past eight years, the justices said excluding religious schools from state-funded programs violated the free exercise clause, since the exclusion stemmed from the schools’ religious identity.
The pro-St. Isidore camp says the court should draw the same conclusion in this case and rule that Oklahoma cannot bar religious schools from participating in its charter school program simply because they’re religious.
St. Isidore’s opponents, on the other hand, believe the court should treat the charter school program differently than it treated programs involving scholarships and vouchers, since charter schools are public schools in the eyes of the law.
They say the ruling should not focus on the First Amendment’s free exercise clause, but instead on its establishment clause, which aims to prevent government promotion of religion.
The Oklahoma Supreme Court supported this latter argument and ruled in favor of Drummond in June.
In January, the U.S. Supreme Court took up the case and agreed to consider whether free exercise or establishment clause concerns should win out.
Key questions in St. Isidore case
During oral arguments on Wednesday, the justices returned to two questions again and again:
Should St. Isidore be seen as a public school?
Do the three recent funding rulings actually apply to the charter school context?
To answer the first question, the justices will have to determine whether charter schools are created and controlled by Oklahoma in the same way — or at least a significantly similar way — that public schools are created and controlled by Oklahoma.
The attorneys who argued in favor of St. Isidore said it shouldn’t be seen as a public school since it was established by private Catholic organizations and will be controlled by a private school board.
The attorney arguing against St. Isidore said it should be seen as a public school since it came into existence as a result of the state’s charter school program and since public education officials would have significant control over its curriculum.
To answer the second question, the justices will need to decide whether the charter school program creates deeper establishment clause concerns than the scholarship and voucher programs at the center of past rulings.
If it does, then a ban on sectarian charter schools will likely be seen as justified. If it doesn’t, then Oklahoma will likely be found to have engaged in the same type of religious discrimination that led other states to lose the three recent funding cases.
On Wednesday, the Supreme Court’s three more liberal justices made it clear that they believe St. Isidore raises unique and significant establishment clause issues, as was expected heading into oral arguments.
Meanwhile, several of the more conservative justices openly advocated for applying the past rulings.
This “seems like rank discrimination,” said Justice Brett Kavanaugh at one point.
How will the Supreme Court rule?
Since Justice Amy Coney Barrett recused herself from the proceedings, the three liberal justices only need one conservative justice to join them to force a 4-4 tie, which would leave the Oklahoma Supreme Court’s decision in place.
Chief Justice John Roberts emerged as the best candidate to be a swing vote during Wednesday’s arguments. At one point, he raised a concern about applying the past funding rulings to the charter school context.
Those past cases “involved fairly discrete state involvement. … This does strike me as much more comprehensive involvement,” he said.
But Roberts also raised concerns about what a ruling against St. Isidore could mean for other religious institutions. For example, he wondered if a decision presenting a religious charter school as a state actor would cause issues for faith-based foster care agencies that work closely with state governments.
Roberts was far from the only justice worried about what the future will hold.
His more liberal colleagues implied that a ruling for St. Isidore would lead to chaos nationwide, as religious charter schools fight to get established in other states and then push back against curriculum rules.
More conservative justices questioned whether, after such a ruling, blue states would seek to shut down charter school programs or change the law so that there would be no doubt they’re state-run.
The attorney fighting against St. Isidore emphasized the potential for future confusion, noting that a ruling in favor of the religious charter school would force changes to federal law, as well as education policies in at least 45 other states.
Meanwhile, the attorneys arguing in favor of St. Isidore aimed to downplay the significance of a ruling in their favor, noting that states aren’t at risk of losing the power to set curricular guidelines and that families across the country will never be forced into receiving a religious education.
The Supreme Court’s ruling on religious charter schools is expected by early July.