A seemingly divided U.S. Supreme Court heard oral arguments Wednesday over the nation’s first religious charter school that aims to open in Oklahoma, putting the constitutionality of a state-funded Catholic education to the test.
An Oklahoma state board approved St. Isidore of Seville Catholic Virtual School to operate as a publicly funded charter school in 2023. The Oklahoma Supreme Court blocked the school from opening in a June ruling, finding the concept of a religious charter school a violation of the Constitution’s prohibition against government-established religion.
The nation’s highest Court, with its conservative majority, agreed to hear an appeal of the ruling. Justice Amy Coney Barrett, a Catholic with ties to two legal groups behind St. Isidore, has recused.
Five of the eight remaining justices who heard the case also are Catholic — John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Sonia Sotomayor. Justice Elena Kagan is Jewish, and Justice Ketanji Brown Jackson is a nondenominational Protestant.
A decision from the Court is expected by the end of June.
The Court’s liberal justices — Sotomayor, Kagan and Jackson — appeared doubtful that previous rulings support the idea that a charter school could constitutionally adopt a religion. Kagan also wondered about the nationwide implications of permitting publicly funded religious schools.
Kavanaugh, part of the Court’s conservative majority, said disapproving a charter school solely on religious grounds “seems like rank discrimination against religion.” Opening charter school funding to faith-based institutions would “be expanding the options, not contracting the options” of school choice in public education, he said.
“All the religious school is saying is, ‘Don’t exclude us based on religion,’” Kavanaugh said.
Jackson and Kagan, though, pointed to ways St. Isidore’s founding contract differs from that of other charter schools. The school pledged to comply with state regulations and non-discrimination laws only to the extent that Catholic doctrine allows.
The Court made prior decisions that religious schools can’t be excluded from government grants and state-funded tuition assistance programs. In those cases, Jackson said, a religious school wasn’t changing the terms of a government program.
“It seems to me you are not seeking the same public benefit as everyone else,” Jackson said.
The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to open St. Isidore, named after the patron saint of the internet, to offer an online Catholic education to students in all parts of the state, particularly in rural areas with no brick-and-mortar Catholic school.
St. Isidore would be Catholic in all ways but open to students of all belief systems, archdiocese officials have said. Students would have to learn Catholic doctrine and obey school rules inspired by church beliefs.
“We are grateful that the U.S. Supreme Court heard our case and now entrust it to their wisdom,” Oklahoma City Archbishop Paul S. Coakley and Tulsa Bishop David A. Konderla said in a statement Wednesday. “Of course, we pray and hope for a decision that stands with religious liberty and the rights of Oklahoma families to make their own decisions in selecting the best educational options for their children.”
Both the school and the Oklahoma Statewide Charter School Board, which approved St. Isidore’s founding contract, appealed the state Supreme Court ruling. Oklahoma’s attorney general has led the legal battle against the school.
Jim Campbell, chief legal counsel of the national conservative legal group Alliance Defending Freedom, presented the statewide board’s oral arguments Wednesday. Michael H. McGinley of Deckert LLP represented St. Isidore.
Both contended charter schools aren’t an arm of the government like traditional public schools. Rather, they are private entities who contract with the state to provide a public service, like a private hospital, and therefore should be free to adopt a religion.
After leaving the courtroom, Campbell said he found the justices “very receptive to the arguments we were making.”
“The law is on our side,” Campbell said. “The First Amendment says when you create a program and invite everyone in but tell only religious groups that they can’t come, that violates the Constitution.”
Former U.S. Solicitor General Gregory Garre, now of Latham & Watkins LLP, gave oral arguments on behalf of the Oklahoma attorney general, who said the concept of a publicly funded religious school is unconstitutional.
Charter schools bear all necessary resemblance to traditional school districts to be considered public, Garre said. The state can open and close a charter school, unlike a fully private institution. They are subject to the equal academic standards as Oklahoma public schools and most of the same regulations, though they have more flexibility over teaching methods and employee hiring.
They are governed by independent boards, though they must contract with a traditional school district, college or university, Native American tribe or a state board that oversees them as a charter authorizer.
Laws in 47 states, including Oklahoma, and federal law all define charter schools as public schools and forbid them from religious affiliation.
Like all public schools, Garre said, charter schools must comply with church-state separation.
Kagan seemed to agree.
“When I look at Oklahoma and its charter schools program, they look like regular public schools,” she said. “These charter schools, except for some things on the margin, are equivalent to public schools. So why shouldn’t we take the state at its word (that they are public)?”
Oklahoma Attorney General Gentner Drummond has been the school’s leading opponent, despite it having support from fellow Republican leaders in the state.
Drummond contended St. Isidore would create a “slippery slope” leading to charter schools teaching faith systems that most Oklahomans would disagree with — a position Alito said “seems to be based on hostility to certain religions.”
Gov. Kevin Stitt has been a vocal advocate of opening St. Isidore. Standing outside the U.S. Supreme Court building on Wednesday, Stitt said the school “expands choice and freedom,” and the government shouldn’t stand in the way.
“I think the Supreme Court is going to rule with us because it’s just common sense,” he said.
Charter school advocates feared a ruling in St. Isidore’s favor could cause a widespread closure of charter programs in states that won’t abide taxpayer-funded religious education.
All of a sudden, “we won’t know what the rules are for charter schools anymore in 47 states and the federal level,” said Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools.
“This is going to shut down the charter school program in many states where there is simply no appetite by state lawmakers to fund religious schools,” Coleman said after oral arguments. “States like California, New York, New Jersey, Illinois where there are millions of children attending charter schools today.”
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