The Supreme Court’s conservatives appeared amenable to signing off on the bid to create the nation’s first taxpayer-funded religious charter school during oral arguments Wednesday.
With Justice Amy Coney Barrett recused, Chief Justice John Roberts emerged as the key swing vote over the effort to establish St. Isidore of Seville Catholic Virtual School in Oklahoma, which has spurred a major constitutional battle over the role of religion in state-funded education.
Roberts at the onset of the argument sharply questioned some of the positions advanced by St. Isidore. But by the time the two-hour argument concluded, Roberts seemed more open to siding with the school.
Ultimately, the chief justice analogized the case to the Supreme Court’s 2021 ruling that Philadelphia couldn’t exclude a religious agency from its foster care system.
“We held they couldn’t engage in that discrimination,” Roberts said. “How is that different from what we have here: an education program, and you want to not allow them to participate with a religious entity.”
For St. Isidore and the Oklahoma Statewide Charter School Board to successfully overturn the lower ruling voiding the school’s contract, they must persuade at least five justices.
But Barrett’s recusal makes that math more complicated. Although she has not publicly explained her decision, court watchers believe it stems from her close friendship with Nicole Garnett, a professor at Notre Dame Law School, whose religious liberty clinic represents St. Isidore.
Barrett’s recusal means all five remaining conservative justices must side with the school for it to emerge victorious, assuming the Supreme Court’s three liberal justices vote the other way. The trio at Wednesday’s arguments all expressed concerns about the plans for St. Isidore.
“What you’re saying is the Free Exercise Clause trumps the essence of the Establishment Clause,” said Justice Sonia Sotomayor. “Because the essence of the Establishment Clause was, we’re not going to pay religious leaders to teach their religion.”
The argument marks the latest development in what has been a two-year battle by St. Isidore to open as part of Oklahoma’s charter school system.
The religious charter school was initially rejected by the Oklahoma Statewide Charter School Board over certain issues with its application that the institution then had the opportunity to correct.
The board’s eventual approval sparked a battle with Oklahoma’s Republican attorney general, Gentner Drummond, who sued directly in the state’s top court, which ruled the plans for St. Isidore violate the state and U.S. constitutions.
The Supreme Court agreed to hear appeals of that decision filed by both the school and the charter school board in what has become a major battle over the First Amendment’s religion clauses.
At the crux of the case is whether St. Isidore can be considered a state actor, like any ordinary public school.
The high court has long held that states can require their public schools to be secular. But the court has also held states cannot exclude religious institutions when they use public dollars to fund private groups.
Charter schools take taxpayer money, are open to all students and have free tuition. The key difference between other public schools is that charter institutions are run by private organizations. In many states, laws are on the books that require charter schools to be run in a nonsectarian way.
“All we have here is government oversight outside of the organization, and this court has been clear in its state action cases that government regulation from the outside is not sufficient to constitute state control,” said James Campbell, an attorney at Alliance Defending Freedom, a conservative Christian legal powerhouse, who represents the charter school board.
The position contrasts with many charter school advocates, who have worked for years for the institutions to be seen as equivalent to government-run public schools.
But Campbell insisted the case is like earlier ones the Supreme Court decided in Maine, Montana and Missouri, where the justices said state programs that fund private education cannot carve out religious schools.
Drummond’s office, represented Wednesday by attorney Gregory Garre, pushed back and emphasized the state’s increased control over charter schools.
“Private schools are fundamentally different,” said Garre, a former solicitor general under former President George W. Bush.
The bid to establish St. Isidore is backed at the Supreme Court by the Trump administration.
Solicitor General D. John Sauer conceded to the justices that the administration believes parts of the federal charter school program are also unconstitutional for similar reasons.
“The values of private innovation, independence and private choice lie at the heart of this charter school program, and they call for the application of the Free Exercise Clause here,” said Sauer.
Tuesday marked Sauer’s first argument since the Senate confirmed him as the administration’s top Supreme Court lawyer.
The case is one of several in this term that implicate the intersection of religion and education.
The justices are also mulling whether Montgomery County, Md., parents must be allowed to opt out from curriculum that includes LGBTQ-inclusive books and whether Catholic Charities can be exempted from Wisconsin’s unemployment tax.
A decision in the case on St. Isidore’s future is expected by late June or early July.
