Will US Supreme Court Allow Religious Charter Schools?

The U.S. Supreme Court recently heard oral arguments in a key First Amendment case involving the separation of church and state. The issue before the justices in Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond is whether St. Isidore of Seville Catholic Virtual School may become the nation’s first state-funded religious charter school.

Facts of the Case

The State of Oklahoma operates a charter school program to which St. Isidore, a Catholic institution, applied. The Oklahoma Virtual Charter School Board (the Board) granted St. Isidore’s application.The State’s Attorney General, Gentner Drummond, subsequently sought a writ of mandamus in the Oklahoma Supreme Court to terminate St. Isidore’s contract. In support, he cited that Oklahoma’s Charter Schools Act prohibits a sponsor from authorizing “a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.” Drummond further maintained that St. Isidore’s contract with the Board violated the Oklahoma Constitution’s prohibition on “using public money for the benefit or support of any religious institution.”

The Oklahoma Supreme Court held that that the Board had violated Constitution’s Establishment Clause, the Oklahoma Charter Schools Act, and the Oklahoma Constitution when it allowed St. Isidore to become a charter school. According to the Oklahoma Supreme Court, because St. Isidore is “a governmental entity and a state actor,” its contract violated the Establishment Clause, citing that it had planned to “incorporate Catholic teachings into every aspect of the school” and to “require students to spend time in religious instruction and activities” while receiving “direct support” from the State, “all in violation of the Establishment Clause.”

The Oklahoma Supreme Court also found that excluding St. Isidore from a publicly available program open only to non-religious entities does not implicate the Free Exercise Clause. The court reasoned that the Supreme Court’s decisions in Trinity Lutheran v. Comer, Carson v. Makin, and Espinoza v. Montana Department of Revenue do “not apply to the governmental action in this case” because, “[u]nlike the private entities in [those] cases, St. Isidore was created in furtherance of the State’s objective of providing free public education.”

Issues Before the Court

The Supreme Court granted certiorari on January 24, 2025. The justices agreed to consider the following questions:

(1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.

During oral arguments held on April 30, 2025, much of the discussion centered on how the Supreme Court’s recent decisions in Trinity Lutheran, Espinoza, and Carson apply to the current case. The Board’s attorney argued that when the government makes benefits or funds generally available to the public, it can’t exclude people or groups from such programs just because they are religious. However, at least some of the justices appeared unconvinced that the Trinity line of cases applied, with Chief Justice John Roberts noting that the previous cases “involved fairly discrete state involvement.”

Justice Clarence Thomas along with Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh appeared more sympathetic to St. Isidore and the Board. In their view, religious schools weren’t asking for preferential treatment, but rather to not be excluded from the charter-school program based on their religious affiliation. “All the religious school is saying is don’t exclude us on account of our religion,” said Justice Kavanaugh.

With Justice Amy Coney Barrett recused from the case, the Chief Justice may be the crucial vote, as a tie would automatically uphold the Oklahoma Supreme Court’s decision.

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