SCOTUS majority appears likely to OK nation's first religious charter school

A ruling for Oklahoma's charter school board would further increase the role of religion in public life — and change public education in America.

The Oklahoma Supreme Court and Oklahoma’s conservative attorney general agree that the state’s public charter school system should not be funding an explicitly religious school. The federal government’s charter school law and 46 other states’ charter school laws have been based on that premise as well.

But on Wednesday, the right majority on the U.S. Supreme Court — with its religious supremacy project and its outside helpers — appeared likely to end that and OK the first religious charter school in the country.

Justices Clarence Thomas, Sam Alito, and Brett Kavanaugh appeared eager to do so, and Justice Neil Gorsuch’s past writing in a related case signaled his alignment with the move, at least in principle. Chief Justice John Roberts — the key vote then since Justice Amy Coney Barrett has recused herself from the case — appeared to be open to the idea as well.

As Justice Sonia Sotomayor put it, the conservatives on the U.S. Supreme Court are seeking to create a country where “the Free Exercise Clause trumps the essence of the Establishment Clause.“

A ruling for the Oklahoma Statewide Charter School Board and St. Isidore¹ of Seville Catholic Virtual School would further increase the role of religion in public life — and change what it means to provide a public education in America.

After nearly two-and-a-half hours of argument, that outcome was as likely as it appeared when the court reached out to take the case. There was no Republican appointee on the court who seemed committed to a ruling that would maintain the understanding that charter schools are public schools, meaning they are either governmental entities or at least engaged in state action.

As the case has come to the justices, the charter school board and St. Isidore have challenged the Oklahoma Supreme Court’s decision backing the view of Oklahoma Attorney General Gentner Drummond, a Republican, that the board’s decision to approve St. Isidore’s application to be a charter school is illegal under state law.

The charter school board — represented on Wednesday by James Campbell from Alliance Defending Freedom, a far-right Christian legal advocacy organization — argued that past Supreme Court cases addressing whether churches and religious groups can be excluded from programs like the one at issue in Trinity Lutheran Church of Columbia v. Comer — providing recycled tire chips for playgrounds — dictate the outcome here.

Justice Ketanji Brown Jackson, however, pushed back on that notion repeatedly, asking lawyers for the charter school board and St. Isidore’s — as well as the Justice Department, which sided with the charter school board after the Trump administration began — how this is the same case as those ones.

“It seems to me that you are not seeking the same public benefit,“ she told Michael McGinley, a partner at Dechert LLP who was representing St. Isadore’s. Continuing, she explained:

The state says: “Here's our program, and we're laying out all the provisions in a contract, and anyone who would like to have this contract, you're welcome, and we're not excluding religious people, but here are the terms.”

And you say: “Ah, but there's a term in here that says you have to be nonsectarian.”

Jackson went on to note how that is aligned with language in federal law, then concluded:

And so it just seems to me very hard to accept the discrimination principle that you're putting forward when you come in and say: “We don't want that contract. We want one that we've tailored to strike out some of the terms that you have put in here.”

But, in a moment notable as much for Kavanaugh’s almost gleeful childishness as his legal response, he characterized the case very differently. “[A]ll the religious school is saying is don't exclude us on account of our religion,” Kavanaugh insisted, describing the circumstances as such:

[I]f you go and apply to be a charter school and you're an environmental studies school or you're a science-based school or you're a Chinese immersion school or you're a English grammar-focused school, you can get in. And then you come in and you say, “Oh, we're a religious school.”

It's like, “Oh, no, can't do that, that's too much. That's scary. We're not going to do that.” …

And 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.

Although fighting an uphill battle, Gregory Garre, the Latham & Watkins partner representing Drummond, tried his best to explain the difference — not that it would matter to Kavanaugh, but, perhaps, for Roberts.

The Supreme Court has said that “states may maintain strictly secular public schools,” Garre, the former solicitor general toward the end of the George W. Bush administration, explained. “And that's all the State of Oklahoma has done here.”

For his part, Roberts was focused the Trinity Lutheran line of cases, including 2022’s Carson v. Makin over a Maine tuition assistance program, as well as the recent case over Catholic Social Services’s foster placement policies refusing to license same-sex couples. Roberts wrote all three of these opinions.

In the foster-care case, the Supreme Court held that Philadelphia could not force CSS to include same-sex couples in order to participate in the city’s foster-care program. To do so would violate their Free Exercise rights, Roberts wrote for the court in Fulton v. City of Philadelphia.

“How is that different from what we have here?” Roberts asked. “You have an education program, and you want to not allow them to participate with a religious entity.“

Garre explained that the situation is “fundamentally different” for three main reasons, asserting that “our position doesn't threaten faith-based contractors at all.“ The adoption agency involved in Fulton “wasn't established by the state through legislative action. It wasn't fully funded by the state. It wasn't controlled by the state.“

As Garre also tried to establish, the case could get much more complicated if the court tries to craft an opinion reversing the Oklahoma Supreme Court. In addition to the federal law — which Solicitor General John Sauer said is unenforceable in part already — the many other state laws would be thrown into doubt, potentially struck down as unconstitutional. Additionally, if forced to allow public funding of religious schools, some states could choose to end their charter school program altogether.

“This is going to create uncertainty, confusion, and disruption for, you know, potentially millions of school children and families across the country” as states decide how to address a decision, Garre argued. Additionally, he noted, “If this Court holds that charter schools are not public schools, then there's a question as to whether children with disabilities who go to charter schools would be covered by the IDEA.”

In a reminder that the case from just eight years ago was allegedly over recycled tire chips, Garre summed up the “it can always go further” strategy bluntly.

“Surely, there'll be schools that want to test the next limit,” Garre said. “There will be questions about who can be teachers. Can you have a gay teacher or not? There will be questions about the application of the ministerial exception. And then there are going to be questions about curriculum.”

This was not an errant comment. In fact, to the contrary, multiple times throughout Campbell’s argument for the charter school board, he insisted that this or that hypothetical posed by the liberal justices could come out differently than this case and “the analysis would be different.”

While that is of course true, Garre is also almost certainly right that Alliance Defending Freedom and others will soon be bringing the very cases Garre mentioned if they get the result they are seeking here.

ADF and aligned groups will keep testing the limit until the Supreme Court’s religious supremacy majority tells them there is one.

1. Apologies for having spelled St. Isidore incorrectly. It has been corrected.