The U.S. Supreme Court on Wednesday appeared open to arguments that Oklahoma must allow a religious charter school, though the recusal of one conservative justice contributed to uncertainty about the outcome.
Four of the conservatives participating in Oklahoma Statewide Charter School Board v. Drummond appeared likely to support St. Isidore of Seville Catholic Virtual School, which would be sponsored and controlled by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa. The Oklahoma Supreme Court blocked the school from joining the state charter program.
“All a religious school is saying is, don’t exclude us on account of our religion,” Justice Brett M. Kavanaugh said during more than two hours of arguments. Excluding the religious applicant from a general state program, in which St. Isidore would receive an estimated $2.7 million in state funding in its first year, “seems like rank discrimination against religion.”
Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch also appeared supportive.
The court’s three liberal members—justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—voiced sharp concerns.
There will be “a line out the door” of religious groups seeking to establish their own publicly funded charter schools “if you can do this consistent with your religious belief,” Kagan said.
“This notion that the state can do this while still maintaining all its various curricular requirements” would be a “sort of fantasy land given the state of religious belief and religious practice in this world,” she said.
Chief Justice Roberts may hold pivotal vote
With the recusal of Justice Amy Coney Barrett, only eight justices are participating—raising the possibility of a 4-4 split, which would affirm the Oklahoma court without creating a national precedent. It seems the case could come down to Chief Justice John G. Roberts Jr.
He was the author of the majority opinions in three recent decisions—the 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, its 2020 decision in Espinoza v. Montana Department of Revenue, and its 2022 ruling in Carson v. Makin—that all overturned state exclusions of religious schools from generally available aid programs.
Still, Roberts questioned whether those precedents apply here.
“Those involved fairly discrete state involvement,” Roberts said, referring to the programs involving playground safety, tax credits for contributions to scholarship aid, and tuition assistance for some students to attend private schools.
“This does strike me as a much more comprehensive involvement,” Roberts said to James A. Campbell, the lawyer for the Oklahoma charter school board, which is fighting to grant a charter to St. Isidore. “I wonder, what case do you think supports the position with respect to that level of involvement?”
Campbell emphasized that Carson stands for the principle that when a state opens a public benefit program, it “can’t exclude groups or people just because they’re religious.”
“And that’s exactly what we have here,” Campbell said.
But Roberts later in the argument cited a 2021 decision in which the court sided with a Catholic social service agency on its free exercise of religion challenge to being excluded as a foster care provider because of its refusal to certify same-sex couples.
“How is that different from what we have here?” he asked the lawyer arguing against religious charter schools, who did his best to argue they were different.
Liberal justices question curriculum conflicts
The argument occurred in a packed courtroom that included members of the state charter board and Gov. J. Kevin Stitt, a Republican who supports the religious charter school, as well as education advocates who oppose it.
Besides Campbell, two other lawyers argued for St. Isidore. Michael H. McGinley, a Washington lawyer who argued on behalf of the school itself, argued that St. Isidore is not a creation of the state and is not a state actor, meaning it is not even a private entity that acts with the power of the state.
“St. Isidore is a private religious nonprofit,” he said.” It was created by private actors, and it is controlled by a private board that consists of entirely private actors. It thus lacks the essential elements of a government entity.”
D. John Sauer, appearing for the first time as U.S. solicitor general for President Donald Trump, argued that “providing education through charter schools is not a traditional and exclusive public function.”
“The values of private innovation, independence, and private choice lie at the heart of this charter school program, and the call for the application of the free exercise clause,” he said.
The liberal justices pushed back.
What if a religious charter school wanted to teach creationism and not evolution that might be prescribed in a state’s public school curriculum, Sotomayor wondered. (Campbell never quite gave a direct answer on that.)
Kagan suggested a hypothetical removed from Oklahoma to her home state of New York, where a Hasidic Jewish sect may seek a religious charter school that, like many private yeshivas, focuses on the Talmud and other religious teachings with a minimum of instruction in secular subjects.
“Is New York obligated to say yes” to that? she asked McGinley. He said, “You can’t take imagined, hypothetical downstream questions and let them drive and justify front-end religious discrimination.”
Jackson said that St. Isidore “doesn’t want to establish a secular school, which is what the public benefit is. Instead, they want to establish a religious school. … So, as I see it, it’s not being denied a benefit that everyone else gets. It’s being denied a benefit that no one else gets, which is the ability to establish a religious public school.”
Charter schools are public schools, Oklahoma’s lawyer stresses
Gregory G. Garre, a former U.S. solicitor general under President George W. Bush, argued for Oklahoma Attorney General Gentner Drummond, a Republican who brought the case against the religious school charter in the state high court. (Drummond was at the counsel table with Garre.)
Garre stressed repeatedly that charter schools have been considered public schools since their inception in the 1990s, both under the federal law authorizing aid to them and under the laws of the now-47 states that permit them. (North Dakota recently became the latest, Garre informed the court.)
They are meant “to expand educational opportunities within the public school system, and have been recognized as and indeed are required to be public schools by the Congress of the United States and the legislatures of 47 states,” Garre said.
Teaching religion “as truth in public school is not allowed,” he said, and the advocates of St. Isidore are seeking not access to the state program on equal terms but “special status: the right to establish a religious charter school plus an exemption from the nondiscrimination requirements that apply to every other charter school and that distinguish public schools from private schools.”
Some conservative justices pushed back on Garre.
Kavanaugh said he thought charter schools “were built on the idea that innovative approaches to education would increase the quality of education in a particular community.”
Alito picked up on that idea.
“The point of the charter school program, as I understand it, is to confer a lot of flexibility on the charter schools so that they offer a real alternative to the public schools,” he said
Alito peppered Garre with questions about themed charter schools that might seek to inculcate certain secular ideas, such as one based on a pro-LGBTQ+ outlook, “to send the message that this is a perfectly legitimate lifestyle?” the justice said, or one built around the 1619 Project and a focus on the nation’s legacy of slavery?
“On the other hand, I don’t want this to be one-sided,” Alito continued. “Suppose a school says we’re going to teach American history like the way it was taught in 1955, so we’re going to celebrate the Founding Fathers and we’re not going to say anything about their shortcomings.”
Garre said some of those ideas would run afoul of state laws on curriculum and what may or may not be taught in the classroom.
“And that’s the point, Justice Alito,” he said. “Charter schools are like public schools, traditional public schools. When it comes to curriculum, they’re controlled as to curriculum.”
If the court holds that the Oklahoma charter school program is unconstitutional, “then it immediately renders the charter school laws in 47 states unconstitutional,” Garre said
A decision in the case is expected by late June or early July.
