What to know about Supreme Court case on religious charter schools

The Supreme Court could bless a major expansion of the use of taxpayer money for religious education.

WASHINGTON − The Supreme Court on Wednesday will consider whether the Catholic Church in Oklahoma can run the nation’s first religious charter school, a potentially major expansion of the use of taxpayer money for religious education.

The court’s decision is expected to turn on whether charter schools – which are publicly funded but have private operators – are public schools under the law.

If they are, religious charter schools could violate the Constitution’s prohibition on the government backing a religion.

If they’re not, prohibiting the church from participating in the state’s charter school program could be discrimination under the Constitution’s promise that Americans can practice religion freely.

In recent cases where those dual aspects of the First Amendment have been in tension, the Supreme Court came down on the side of protecting religious exercise, blurring the line separating church and state.

Here’s what you need to know about one of the most high-profile cases the court is deciding this term.

What is a charter school?

Charter schools are tuition-free schools funded through taxpayer dollars but run independently of local school boards. They have more flexibility in how they operate than traditional schools.

Oklahoma’s 30 charter schools educated about 7% of the state’s public-school students during the 2022-2023 school year.

Nationally, there are more than 8,000 charter schools serving nearly 3.8 million students, according to the National Alliance for Public Charter Schools.

Is this case different from school vouchers?

Yes. In 2002, the Supreme Court said taxpayer dollars could be used to help parents pay for tuition at private religious schools.

One of the justices who dissented in that 5-4 decision, now-retired Justice David Souter, called the scale of public assistance to religious schools approved by the court “unprecedented.”

And vouchers cover only a portion of the cost of a private school.

Oklahoma provides vouchers up to $7,500 for parents to send their children to private schools of their choice, including religious ones.

What other Supreme Court decisions led to this case?

In a trio of cases since 2017, the court has allowed taxpayer funds to flow to religious organizations. Most recently, the court said Maine couldn’t exclude religious schools from an indirect aid program based on the schools’ religious use of the funds.

“The state pays tuition for certain students at private schools – so long as the schools are not religious,” Chief Justice John Roberts wrote in 2022 for the 6-3 majority of conservative justices. “That is discrimination against religion.”

In her dissent, Justice Sonia Sotomayor said the court was continuing “to dismantle the wall of separation between church and state that the framers fought to build.

She expressed “growing concern for where this court will lead us next.”

Who is behind the proposed school?

The Catholic Church’s two diocese in Oklahoma formed a nonprofit corporation called St. Isidore of Seville Virtual Charter School, Inc. In 2023, the nonprofit applied to participate in Oklahoma’s charter school program. The school projected an initial enrollment of 500 students.

Would the school be open to non-Catholics?

The K-12 school would be open to all Oklahomans who want a “robust Catholic education” that includes teaching “Catholic faith and morals.” Students would be required to attend two all-school masses, though exemptions are available.

How did the issue end up in court?

The state’s governing body for charter schools voted 3-2 to approve the church’s application. Oklahoma Attorney General Gentner Drummond sued the governing body, arguing the charter school board’s contract with the church’s nonprofit corporation was illegal.

What did the lower court decide?

The Oklahoma Supreme Court ruled 6-2 last year that charter schools are public schools and state law requires public education to be secular. The court also said a Catholic charter school would violate the federal Constitution’s clause aimed at keeping religion separate from government.

Both the state’s charter school board and the nonprofit created by the Catholic dioceses asked the U.S. Supreme Court to weigh in. The court consolidated the two appeals into one case although both the school board and the school are represented by different attorneys who will each get to speak during the oral arguments.

How has the issue divided Oklahoma Republicans?

Oklahoma’s governor and attorney general – both Republicans – are on opposite sides of the issue.

Drummond, the attorney general, has said allowing the Catholic charter school would “open the floodgates and force taxpayers to fund all manner of religious indoctrination, including radical Islam or even the Church of Satan.”

Oklahoma Gov. Kevin Stitt has criticized what he says is Drummond’s “open hostility against religion.”

What is the Trump administration’s position?

Under the Trump administration, the Justice Department changed its position that charter schools act like government entities. The court granted Trump’s solicitor general time during the oral arguments to make its case that Oklahoma can’t bar religious charter schools.

What are the legal questions the court is deciding?

The court is deciding whether the state’s charter schools are “public,” which would allow the state to say they can’t be religious. They are also deciding whether Oklahoma can reject religious charter schools without violating American’s constitutional right to practice their religion.

What is the argument for St. Isidore?

The church and the Oklahoma governing body that backed their proposed virtual charter school argue that charter schools aren’t “public,” because that terms applies only to the fact that charter schools are free to students and funded through taxpayer dollars.

Charter schools retain enough independence from the state to keep it from being a government entity, they say. And once the state allowed private entities to operate charter schools, blocking the Catholic Church from doing so would unconstitutionally discriminate against religion.

Because no student has to attend the school, the government is not imposing religion on anyone, they argue.

What is the argument against St. Isidore?

Drummond, the Oklahoma attorney general, says charter schools are public in any ordinary sense of the word. They are created and funded by the state, are heavily regulated by the state, have to follow anti-discrimination laws, are free and open to all students and their teachers can join state retirement and insurance plans.

That’s why 46 states, including Oklahoma, and the federal government define charter schools as public schools, Drummond says. If Oklahoma’s requirement that charter schools be both public and nonsectarian is unconstitutional, he argues, then so are everyone else’s – a result that would create “chaos and confusion for millions of charter-school students.”

What are the non-legal arguments both sides are making?

The Oklahoma attorney general, says the nation’s founders were justifiably concerned about the government giving an official stamp of approval to religion. And keeping religious instruction out of public schools – a uniquely influential environment − helps promote tolerance for different political and religious views, Drummond argues.

St. Isidore and the charter school board say opening up the program to religious schools will expand educational choices, especially for low-income families.

Would other religious schools become charter schools?

If the Supreme Court sides with St. Isidore, thousands of Catholic and other religious schools across the nation could transform into charter schools, according to Michael Petrilli, the president of the Fordham Institute, a right-leaning think tank.

How many convert, however, will depend in part on what rules they would have to follow, such as whether they could exclude LGBTQ+ students or staff.

“The Court − if it finds that states must allow religious schools − will need to spell all this out,” Petrilli wrote. “If not, these questions are likely to be litigated for years to come.”

Could a ruling for St. Isidore hurt the charter school movement?

The National Alliance for Public Charter Schools sees the case as an “existential threat not just to the fabric of public charter schools, but to their continued existence.” If charter schools are considered private, not public, that would jeopardize the funding of charter schools in states that ban public funding for private schools, they told the Supreme Court in a filing.

“Unable or unwilling to sponsor private charter schools, some states may decide to place charter schools under the type of uniform, top-down oversight that stifled public school innovation in the first place,” the association wrote.

Could the court deadlock?

Because Justice Amy Coney Barrett recused herself from the case, a 4-4 deadlock is possible. That would mean the state supreme court’s decision rejecting religious charter schools would remain.

Barrett did not give a reason for her recusal. But she’s close friends with the Notre Dame Law School professor who was an early legal adviser to St. Isidore.

When will the court issue its opinion?

A decision is expected by summer.

What other religious rights cases are pending before the court?

The court is also deciding whether parents with religious objections can request that their children be excused from class when books with LGBTQ+ characters are being used. And they’re deciding whether a Wisconsin Catholic charitable organization should be exempt from state unemployment taxes.

During both oral arguments, the court appeared likely to side with the religious groups.