SCOTUS to Rule on the Constitutionality of the Nation’s First Catholic Charter School

The United States Supreme Court heard oral arguments Wednesday concerning the constitutionality of the nation’s first religious charter school.

Originating in Oklahoma, this case focuses on St. Isidore of Seville Catholic Virtual School and its application for public funding through the state’s charter school program.

Although charter schools operate independently from the public school system, they are funded with taxpayers’ dollars and are free for any student to attend.

Justice Amy Coney Barrett, a devout Roman Catholic, has recused herself from the case, although a reason for this decision was not given.

The New York Times reported, however, that Justice Barrett is close friends with a Notre Dame professor who helped advise the St. Isidore legal team.

Consequently, the Supreme Court has the potential to issue a 4-4 ruling, which would mean that the lower court’s decision would stand.

It is expected that the Court’s ruling will likely come down to the opinion of Chief Justice John Roberts, who is often labeled as the Court’s “swing vote.”

Oklahoma’s top court stuck down the school’s application to participate in the charter program this past June, arguing that charter schools must be non-sectarian — or non-religious — due to their relationship to the government.

The case effectively comes down to a disagreement over which part of the First Amendment is most applicable in this scenario — the right to freely exercise one’s own religious beliefs without discrimination, or the guarantee that the government will not establish an official religion, often referred to as the separation of church and state.

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As explained in the 27-page ruling, the Oklahoma Supreme Court is of the belief that allowing St. Isidore to participate in the state’s charter school program would result in the State of Oklahoma effectively contracting for religious “teachings and activities” through the school.

“St. Isidore came into existence through its charter with the State and will function as a component of the State’s public school system,” the decision said. “This case turns on the State’s contracted-for religious teachings and activities through a new public charter school, not the State’s exclusion of a religious entity.”

The First Amendment’s Establishment Clause bars the government from making any laws “respecting an establishment of religion.”

The court went on to argue that allowing a religious charter school in the state would “create a slippery slope” that could lead to “the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”

Vice-Chief Justice Dana Kuehn dissented, arguing that barring St. Isidore from participating in the charter school program “based solely on religious affiliation” would represent a violation of the Free Exercise Clause of the First Amendment.

The Free Exercise Clause states that the government cannot make any laws “prohibiting the free exercise [of religion].”

Similar concerns regarding alleged religious discrimination in Maine were brought before the Supreme Court in 2022 with respect to the state’s longstanding Town Tuitioning program, which allows students from districts without a public school to attend the public or private school of their family’s choosing.

The plaintiffs in that case, Carson v. Makin, were challenging the state’s requirement that schools must be non-sectarian in order to participate, meaning that families did not have the option of sending their children to religious schools through the Town Tuitioning program.

The Court ultimately struck down this part of the law, arguing that the provision violated the Free Exercise Clause of the First Amendment.

“Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Chief Justice Roberts wrote in the Court’s majority opinion at the time.

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In light of this decision, Maine Attorney General Aaron Frey issued a statement doubling down on the State’s position that religious schools should be excluded from the Town Tuitioning program because of their religious beliefs, labeling them as “fundamentally at odds with values we hold dear” and “inimical to a public education.”

Frey then vowed to explore ways to avoid allowing religious schools to participate in the program despite the Court’s ruling.

These statements, coupled with changes made to the Maine Human Rights Act in 2021, have since prompted further lawsuits against the state alleging that deliberate efforts were made to subvert the Supreme Court’s decision and continue barring religious schools from participating in the program.

In a dissenting opinion for this case, then Justice Stephen Breyer questioned whether the Court’s ruling would open the door for a fight over religious charter schools, as has come to fruition in this case.

“Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?” Justice Breyer wrote.

During Wednesday’s oral arguments, Carson v. Makin was referenced alongside two other previous Supreme Court decisions by James Campbell, the attorney representing the Oklahoma Charter School Board as support for his position that St. Isidore of Seville Catholic Virtual School is eligible for public funding.

Chief Justice Roberts pushed back on this assertion, suggesting that those cases “involved fairly discrete state involvement,” suggesting that “this does strike me as a much more comprehensive involvement.”

Justice Elena Kagan echoed this sentiment, arguing that this case is “a fair bit different” from Carson because “these are state-run institutions.”

“I don’t have to imagine very hard to come up with a hundred hypotheticals like this, because religious communities are really different in this country, and are often extremely different from secular communities in terms of the education that they think is important for their young people and is critically important to their faith,” Justice Kagan said.

“I think there are going to be — there’s a line out the door if you can do this consistent with your religious belief,” she said.

Justice Clarence Thomas pushed back on the idea that St. Isadore’s would be a public entity.

“The argument that St. Isidore and the board are making is that it’s a private entity that is participating in a state [charter] program,” said Justice Thomas. “It was not created by the state program.”

According to Justice Ketanji Brown Jackson, St. Isadore’s is not being denied a benefit that is available to all, but rather asking to receive a benefit that no one else does: to operate a religious public school.

While Gregory Garre, representing the state’s Attorney General, characterized the school as having “all the hallmarks of government entities,” St. Isadore’s argues that it was created by two private organizations and answers to an outside board.

Justice Kentanji Brown Jackson noted that the 1994 federal law establishing the charter school program specifies that they must be non-sectarian, or non-religious, asking St. Isadore’s attorney Michael McGinley if this law were also unconstitutional, a statement with which he seemed to agree.

Justice Sonia Sotomayor posited that those in support of St. Isadore’s are looking for the free exercise clause to take precedence over the establishment clause.

“What you’re saying is the free exercise clause trumps the essence of the establishment clause,” said Justice Sotomayor. “The essence of the establishment clause was, ‘We’re not going to pay religious leaders to teach their religion.'”

The Justices also discussed how this case could potentially impact whether or not states would be required to approve religious charter schools, even if the curriculum they offer is, in the words of Justice Elena Kagan, “super different.”

Justice Neil Gorsuch later posited that a possible “neutral rule” may require that charter schools, regardless of their religious affiliation, include certain basic subjects like math, science, and reading.

Toward the end of Wednesday’s oral arguments, Justice Samuel Alito highlighted comments from Oklahoma Attorney General Gentner Drummond suggesting that excluding religious charter schools would be wise because it would prevent taxpayers from being required to subsidize Catholic, Muslim, or even satanic teachings.

“Why would we spend one penny of our tax dollars educating them on Catholicism, Sharia law or any other religious teaching?” said Drummond in 2023. “I would prefer we focus on reading proficiency so they can read the Bible at home with their family.”

“This whole position that you’re defending seems to be motivated by hostility toward particular religions,” Justice Alito said to Garre, with the Oklahoma attorney general reportedly present in the gallery. “We have statement after statement by the attorney general that reeks of hostility towards Islam.”

Justice Gorsuch posited if state’s may respond to a decision in the school’s favor by imposing more restrictions on charter schools.

“I can imagine some states might respond to a decision in your favor by imposing more requirements on charter schools,” Gorsuch said. “Have you thought about that boomerang effect for charter schools?”

Justice Brett Kavanaugh appeared during Wednesday’s oral arguments to clearly indicate support for the school’s eligibility.

“All the religious school is saying is, ‘Don’t exclude us on account of our religion,'” Justice Kavanaugh said. “And when you have a program that’s open to all comers except religion, that seems like rank discrimination against religion.”

“You can’t treat religious people, and religious institutions, and religious speech as second-class in the United States,” said Kavanaugh.

U.S. Solicitor General John Sauer argued Wednesday that allowing for the operation of both religious and non-religious schools is not unconstitutional because “the decision whether or not to go to the religious school…lies in the hands of the parents.”

The Supreme Court can be expected to reach a decision in this case by early summer.