In 2020, when Amy Coney Barrett came before the Senate for confirmation to the US supreme court, one of her closest friends told a story on TV about their year together working as law clerks in the nation’s capital.
“That last day when you leave the court you think, ‘Wow, that’s about the coolest thing that’s ever going to happen to me,’” said Nicole Stelle Garnett. She assisted Justice Clarence Thomas during the 1998 term, the same year Barrett worked under Justice Antonin Scalia. “Now, to see my friend testifying before the Senate judiciary committee, to walk back up the steps 21 years later is really, really something.”
Fast forward another five years. Garnett, now a law professor at the University of Notre Dame, is about to have her own supreme court moment.
On 30 April, the court will consider a legal question that has defined her career: can explicitly religious organizations operate charter schools? At the center of the dispute is St Isidore of Seville Catholic virtual school, an online school in Oklahoma that planned to serve about 200 students this year before the state supreme court ruled the decision to approve it violated the constitutional provision separating church and state.
“This could be an earthquake for American public education,” said Samuel Abrams, who directs the International Partnership for the Study of Educational Privatization at University of Colorado, Boulder. As the country experiences a rise in Christian nationalism, a favorable ruling could invite the encroachment of religion not only into education but other areas of civic life that have traditionally been non-sectarian. “If the supreme court rules in favor of overturning that decision, the church-stage cleavage will disappear. That’s a dramatic development for the first amendment.”
In a sign of the case’s gravity, the Trump administration filed a brief in support of St Isidore last week, arguing: “A state may not put schools, parents or students to the choice of forgoing religious exercise or forgoing government funds.”
But Barrett, who handed Donald Trump a conservative 6-3 supermajority when she was confirmed to the court, won’t be on the bench to hear it. She recused herself, leaving no explanation for sitting out what could be the most significant legal decision to affect schools in decades.
Observers believe the cause is her friendship with Garnett, who was an early legal adviser to the school. Nicole and her husband Richard Garnett, also a Notre Dame law professor, are both faculty fellows with the university’s Religious Liberty Clinic, which represents St Isidore.
In a deep irony, the longtime friendship between the two women, forged in Catholic faith and a conservative approach to jurisprudence, now threatens to tip the scales away from a cause Garnett has spent her career defending.
The recusal increases the chances that the vote could end in a 4-4 tie, which would leave the Oklahoma court’s decision intact.
Justices typically do not offer reasons for recusing themselves. A spokesperson for the supreme court said Barrett had no comment on the matter.
Josh Blackman, an associate professor at the South Texas College of Law in Houston and a proponent of religious charter schools, has known the Garnetts for years. “Amy knows what Nicole did for this case,” he said. “The case is so significant because it’s an application of both [the Garnetts’] Catholic faith and their views on constitutional law.”
‘A heady experience’
The friendship between Garnett and Barrett developed long before the legal clash over St Isidore. When Trump nominated Barrett to replace Justice Ruth Bader Ginsberg, Garnett relayed how the two first met at a coffee shop the spring before they became high court clerks in the late 1990s.
“It’s a heady experience and really hard work,” Garnett told the 74. “But we all liked each other. We socialized together.”
When Trump nominated Barrett in 2017 to serve on the US court of appeals for the seventh circuit, all 34 clerks from the supreme court class of 99 – Democrats, Republicans and independents – wrote a letter of support to the Senate judiciary committee.
But none knew Barrett like Garnett. Their personal and professional lives have been intertwined for more than two decades.
When Garnett was pregnant with her first child during their year as clerks, Barrett and the other young attorneys threw her a baby shower in the court’s dining room for justices’ spouses. Barrett is godmother to the Garnetts’ third child. After their clerkship, Richard Garnett helped recruit Barrett to the boutique Washington law firm where he worked. (He later recruited Justice Ketanji Brown Jackson, one of the court’s three liberals, to the same firm.)
At Notre Dame, Garnett and Barrett overlapped as faculty members for roughly 17 years. “She became a lifelong friend,” Garnett said. “She lived around the corner from us and we raised our kids together.”
And when Trump introduced the mother of seven to the nation, Garnett was seated in the Rose Garden along with senators, White House officials and other dignitaries.
Given their intersecting interests, it’s very likely that school vouchers – a top conservative priority to provide students with public money to spend at non-public schools – came up in conversation. Until 2017, Barrett served as a trustee at Trinity School at Greenlawn, a private classical Christian academy in South Bend, Indiana, that participates in the state’s voucher program.
Garnett, meanwhile, was honing legal arguments in favor of expanding such programs. Before joining the faculty at Notre Dame, she worked as a staff attorney for the Institute for Justice, a right-leaning law firm that has led efforts to open school choice programs to religious schools.
While at the institute, Garnett worked on Bagley v Raymond, which challenged Maine’s exclusion of religious schools from a private school choice program. The state won that case, but lost when a subsequent case about the program, Carson v Makin, came before the supreme court. In Carson, Barrett joined the other five conservative justices in ruling that it was unconstitutional to keep those schools out.
Garnett, who didn’t work on Carson, said she cried when the Carson family won.
But even with this victory, Garnett viewed aspects of school choice as unfriendly to religious freedom. She found it troubling that to keep their doors open, many Catholic schools in Indiana were converting to charters, which required them to remove all evidence of their faith.
“Religion has been stripped from the schools’ curricula and religious iconography from their walls,” she wrote in a 2012 paper. “There is little doubt that the declining enrollments in Catholic schools are at least partially attributable to the rise of charter schools.”
Garnett warned that attempts to create faith-based charters would face litigation for years given the longstanding prohibition against using public funds for explicitly religious instruction. But in Oklahoma, Republicans and Catholic church leaders were ready for a fight.
At a time when schools remained shuttered due to Covid, Catholic school leaders in Oklahoma City and Tulsa wanted to expand virtual options and “reach more kids in a big rural state,” she said. A widely-circulated 2020 paper she wrote for the rightwing Manhattan Institute offered a legal path to get there.
“I think that we found each other,” she said. “I didn’t go looking for a client here. It’s very organic how the whole thing unfolded.
‘Hot ticket’
If other recent school choice cases are any indication, there’s still a good chance the court will overturn the Oklahoma supreme court’s opinion. Such a precedent-setting development would have a seismic impact on the nation’s educational landscape, said Michael Petrilli, president of the conservative Thomas B Fordham Institute.
The court could say that “a charter school authorizer can’t turn down an otherwise qualified applicant just because it is religious, or proposes a religious school”, he said.
Such a ruling, he said, could affect all 46 states with charter school laws. But ripple effects could stretch beyond the classroom.
“The implications for education and society could be profound,” said Preston Green, a University of Connecticut education professor. “It would mean that the government cannot exclude religious groups from any public benefits program.”
With oral arguments approaching, Notre Dame law students who have worked with Garnett over the past two years have already asked if she can get them a seat in the courtroom for such “a hot ticket”, she said.
She won’t talk about why her friend recused herself from the case, but acknowledged the stakes.
“My hope is that it won’t go to a 4-4,” Garnett said “My hope is that they wouldn’t have granted [a hearing] if they thought it might. But I know you don’t make assumptions about anything.”
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This story was produced by the 74, a non-profit, independent news organization focused on education in the US
