The nation’s first publicly funded religious charter school will not happen, after a tie vote by the U.S. Supreme Court May 22.
Justice Amy Coney Barrett abstained in the case OKPLAC Inc. v. Statewide Virtual Charter School, leaving eight justices to decide the case. Those justices split 4 to 4, which leaves in place a 2024 Oklahoma Supreme Court ruling declaring the move a violation of the state and U.S. constitutions.
The judgment against St. Isidore of Seville Catholic Virtual School was rendered by “an equally divided court,” and only “applies in Oklahoma and does not resolve the question of whether religious charter schools are constitutional nationwide,” SCOTUSblog explained. The unsigned order did not say how the eight justices voted.
The ruling — or lack of ruling — represents a rapid turnaround on a case that was presented in oral arguments April 30, when some justices appeared open to the idea of using tax dollars to fund a school operated by the Catholic Archdiocese of Oklahoma and the Catholic Diocese of Tulsa.
Justices Brett Kavanaugh and Neil Gorsuch expressed concern that denying charter status for St. Isidore could infringe on its operators’ constitutional right to the free exercise of religion. Justice Sonia Sotomayor reminded the court the Constitution also prohibits the government establishment of religion.
Kevin Stitt (AP Photo/Sue Ogrocki, File)
The case dates to 2023 when the two Catholic jurisdictions sought to launch St. Isidore Seville as a charter school, a proposal that was granted by the Oklahoma Statewide Charter School Board the same year.
Oklahoma Gov. Kevin Stitt supported the plan, but it was opposed by state Attorney General and fellow Republican Gentner Drummond. In late July 2023, a group of parents, ministers and other public education supporters filed to overturn the board’s decision.
The Oklahoma Supreme Court ruling against the funding was appealed to the U.S. Supreme Court last year.
“The Supreme Court’s deadlock means an important principle remains intact: The government cannot operate a religious school, nor can it directly sponsor, promote or pay for religious education,” said Holly Hollman, general counsel and associate executive director of Baptist Joint Committee for Religious Liberty.
Holly Hollman
“From the start, it was clear this case posed a serious threat to religious freedom. Chief Justice John Roberts acknowledged as much in oral arguments, signaling the weight of what was at stake. The Oklahoma decision rightly affirmed that charter schools are public schools. And public schools are where we’ve shown the greatest clarity about religious freedom: They don’t conduct religious exercises, compel prayer or make students feel excluded based on their beliefs. Instead, they reflect the true promise of pluralism — where students can learn about diverse faiths and prepare to participate in a shared democracy.”
Likewise, Rachel Laser, president of Americans United for Separation of Church and State, declared victory.
Rachel Laser
“The Supreme Court’s stalemate safeguards public education and upholds the separation of church and state,” she said. “Charter schools are public schools that must be secular and serve all students. St. Isidore of Seville Catholic Virtual School, which planned to discriminate against students, families and staff and indoctrinate students into one religion, cannot operate as a public charter school. A religious public school would be an abject violation of religious freedom.”
Daniel Mach, director of the American Civil Liberties Union’s program on freedom of religion and belief, described the high court decision as “a major victory” for the principle of separation of church and state.
“The very idea of a religious public school is a constitutional oxymoron,” Mach said. “The Supreme Court’s ruling affirms that a religious school can’t be a public school and a public school can’t be religious.”
A ruling in the other direction would have been catastrophic to fundamental American religion and education, said Cecillia Wang, national legal director of the ACLU, which represented plaintiffs in the lawsuit.
Cecilia Wang
“Requiring states to allow religious public schools would dismantle religious freedom and public education as we know it,” she said. “Today, a core American constitutional value remains in place: Public schools must remain secular and welcome all students, regardless of faith.”
Oklahoma residents can rest assured their constitutionally guaranteed religious liberty was upheld in the Supreme Court’s decision, said Mitch Randall, a Baptist minister and plaintiff in the suit against public funding for St. Isidore Seville.
“Government should remain neutral toward religion, prohibiting taxpayer dollars from advancing religion,” said Randall, a resident of Norman, Okla., citizen of the Muscogee Nation and CEO of Good Faith Media. “The wall separating church and state remains intact for another day.”
John Meiser
John Meiser, St. Isidore counsel and director of the University of Notre Dame Law School Religious Liberty Clinic, expressed dismay with the ruling: “We are disappointed most of all for the hundreds of children for whom this school would have opened a new world of opportunities.”
Oklahoma Gov. Stitt also criticized the ruling: “This 4-4 tie is a non-decision. Now we’re in overtime. There will be another case just like this one and Justice Barrett will break the tie. This is far from a settled issue. We are going to keep fighting for parents’ rights to instill their values in their children and against religious discrimination.”
Oklahoma State Superintendent Ryan Walters, who is widely rumored to be running for governor, also blasted the decision.
“Allowing the exclusion of religious schools from our charter school program in the name of 19th century religious bigotry is wrong,” Walters said. “As state superintendent, I will always stand with parents and families in opposition to religious discrimination and fight until all children in Oklahoma are free to choose the school that serves them best, religious or otherwise.”
But Oklahoma Attorney General Drummond, also a conservative Republican, said he was pleased with the outcome.
“The Supreme Court’s decision represents a resounding victory for religious liberty and for the foundational principles that have guided our nation since its founding,” he said. “This ruling ensures that Oklahoma taxpayers will not be forced to fund radical Islamic schools, while protecting the religious rights of families to choose any school they wish for their children.
Gentner Drummond
“I have always maintained that we must faithfully uphold the Constitution, even when it requires us to make difficult decisions. I will continue upholding the law, protecting our Christian values, and defending religious liberty — regardless of how difficult the battle may be.”
The case strikes at the heart of one of the most fundamental demands of conservative evangelicals and Catholics, who have advocated for years to get public funding for private religious education.
The case also speaks to a key claim of today’s Republican Party, that religious liberty should favor Christians and the Free Exercise Clause of the First Amendment should take precedence over the Establishment Clause.
Justice Barrett did not explain her decision to abstain from the case but some news outlets suggested it could stem from her connection to Notre Dame Law School, whose “religious liberty” clinic is representing St. Isidore.
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Supreme Court appears inclined to establish Free Exercise Clause