Supreme Court conservatives signal support for milestone religious charter school

WASHINGTON — Conservative Supreme Court justices signaled sympathy on Wednesday toward a bid led by two Catholic dioceses to establish in Oklahoma the nation's first taxpayer-funded religious charter school in a major test of religious rights and the separation of church and state in American education.

Organizers of the proposed school and a state school board that backs it have appealed a lower court's ruling that blocked the establishment of St. Isidore of Seville Catholic Virtual School. That court found that the proposed religious charter school would violate the U.S. Constitution's First Amendment limits on government involvement in religion.

Charter schools in Oklahoma are considered public schools under state law and draw funding from the state government.

The Supreme Court, which has a 6-3 conservative majority, has recognized broader religious rights in a series of rulings in recent years. One of the conservative justices, Amy Coney Barrett, is not taking part in this case.

The proposed charter school is being challenged by the state's Republican Attorney General Gentner Drummond. But Republican Oklahoma Gov. Kevin Stitt has backed it, as has Republican President Donald Trump's administration.

St. Isidore, planned as a joint effort by the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, would offer virtual learning from kindergarten through high school. Its plan to integrate religion into its curriculum would make it the first religious charter school in the United States. The proposed school has never been operational amid legal challenges to its establishment.

'Rank discrimination against religion'

Gregory Garre, representing the Oklahoma attorney general's office, told the justices that ruling in favor of St. Isidore "would result in the astounding rule that states not only may but must fund and create public religious schools, an astounding reversal from this court's time-honored precedents."

Conservative Justice Brett Kavanaugh appeared sympathetic to St. Isidore's bid and pressed Garre to explain why the exclusion of St. Isidore would not amount to religious discrimination.

"Our cases have made very clear — and I think those are some of the most important cases we've had — of saying you can't treat religious people and religious institutions and religious speech as second class in the United States," Kavanaugh said. "And when you have a program that's open to all comers, except religion ... that seems like rank discrimination against religion."

James Campbell, a lawyer for the state's charter school board, told the justices that Oklahoma's charter school program allows private organizations to provide more educational options for students in the state, "and it empowers those groups to innovate by giving them broad autonomy over their mission, curriculum and operations." Fueled by private ingenuity, Campbell said, those schools are thriving.

Second-class status

Campbell addressed the state attorney general's contention that the proposed school would be part of the government.

"But it's not," Campbell said. "St. Isidore was privately created by two Catholic organizations, and it is controlled by a privately selected board of directors. Under this court's test, Saint Isidore is neither the government nor engaged in state action. There are already hundreds of families that have signed up for Saint Isidore. They're part of Oklahoma's community, too. They should not be treated as second class."

Campbell said Oklahoma has dozens of other charter schools that have specific themes, including on Native American culture, environmental stewardship and foreign language immersion. Campbell told Kavanaugh that only one type of education seemed to be off limits — religion.

Conservative Chief Justice John Roberts told Campbell that the Supreme Court's religious liberty cases in recent years involved limited state benefits, such as playground improvements, tuition and tax credits.

"This does strike me as a much more comprehensive involvement," Roberts said.

Drummond has told the Supreme Court that Oklahoma's top court correctly classified St. Isidore as a government entity since charter schools qualify as public schools, noting that both are publicly funded and subject to state oversight. Moreover, Drummond argued, the Supreme Court has previously said that states may require secular education in their public schools.

Liberal justices raise concerns

The court's liberal justices raised concerns over the consequences of public funding of religious charter schools.

Liberal Justice Sonia Sotomayor said the school board was giving a lopsided reading of the First Amendment's two religion provisions — the "establishment clause" that restricts government officials from endorsing any particular religion or promoting religion over nonreligion, and the "free exercise" clause that protects the free exercise of religion.

"Really, what you're saying is the free exercise clause trumps the essence of the establishment clause," Sotomayor told Campbell. "The essence of the establishment clause was, 'We're not going to pay religious leaders to teach their religion.'"

The First Amendment generally constrains the government but not private entities.

Michael McGinley, a lawyer for St. Isidore, said that the free exercise clause "bars a state from inviting private parties to participate in an educational funding program while excluding those who exercise their faith."

"But that is precisely what Oklahoma law does here," McGinley argued.

Sotomayor also questioned whether taxpayers could support a school that would, for instance, refuse to teach evolution or the history of slavery in the United States, or that would exclude children of other religions.

Liberal Justice Ketanji Brown Jackson asked John Sauer, U.S. solicitor general in the Trump administration, to address establishment clause concerns, including "a state's concern that unless they are setting up a series of nonsectarian programs, they would be funding religious activities in a way that the Constitution doesn't allow."

The Oklahoma charter school board in June 2023 approved the plan to create St. Isidore in a 3-2 vote.

Oklahoma's top court in a 6-2 ruling last year blocked the school. It classified St. Isidore as a "governmental entity" that would act as "a surrogate of the state in providing free public education as any other state-sponsored charter school," and it decided that the proposal ran afoul of the establishment clause.

The Supreme Court's decision is expected by the end of June.

Barrett, who recused herself from the case, is a former professor at Notre Dame Law School, which represents the school's organizers.

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