Supreme Court Signals Support for Faith-Based Charter Schools in Landmark Case
The U.S. Supreme Court heard oral arguments today in Oklahoma Statewide Charter School Board v. Drummond, a case that could pave the way for the nation’s first religious charter school. The Justices appeared to favor allowing a faith-based school to participate in Oklahoma’s public charter school program, challenging the state’s exclusion of religious institutions from such funding. The case hinges on whether excluding a religious school from state funding violates the First Amendment’s Free Exercise Clause and whether a religious charter school becomes a “state actor” under the Establishment Clause by receiving public funds.
The Court is expected to issue a ruling by June 2025. A decision in favor of the Oklahoma Statewide Charter School Board could mark a historic shift, allowing religious institutions to operate publicly funded charter schools.
Case Background
The dispute arose when the Catholic dioceses of Oklahoma City and Tulsa sought to establish St. Isidore of Seville, a virtual religious charter school, building on their existing online schools. Despite a state law prohibiting “nonpublic sectarian” institutions from becoming charter schools, the Oklahoma Statewide Charter School Board approved St. Isidore’s application, citing U.S. Supreme Court precedents that bar discrimination against religious organizations in public programs.
Oklahoma Attorney General Gentner Drummond challenged the decision, arguing that the contract violated state law and that St. Isidore, as a state-funded entity, would become a “state actor” promoting religious instruction, potentially breaching the Establishment Clause. In June 2024, the Oklahoma Supreme Court sided with Drummond, ruling that charter schools are “governmental entities” and can thus exclude religious organizations.
Oral Arguments: A Clash of Clauses
With Justice Amy Coney Barrett recused, the remaining Justices grappled with the distinction between public, charter, and private schools and the extent of state control that would render a charter school a state actor. The arguments centered on balancing the First Amendment’s Free Exercise Clause, which protects religious freedom, against the Establishment Clause, which prohibits government endorsement of religion.
Oklahoma’s Position: Attorney Gregory Garre, representing the state, argued that charter schools are essentially public schools, subject to state creation, funding, and academic standards. He emphasized that Oklahoma’s secular public school system does not require the inclusion of religious instruction and that funding St. Isidore would effectively “outsource” a constitutional obligation to a religious entity, making it a state actor.
St. Isidore’s Defense: Attorneys James Campbell (Oklahoma Charter School Board) and Michael McGinley (St. Isidore) countered that St. Isidore is a private entity, independently operated before and after its charter contract. They argued that Oklahoma’s law discriminates against religious schools and parents by categorically excluding faith-based options, violating their Free Exercise rights. Campbell stressed that St. Isidore’s inclusion poses no Establishment Clause issue, as it merely offers families a voluntary school choice without mandating religious participation.
Justices’ Perspectives
Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson expressed skepticism about treating charter schools differently from public schools, noting their state-created nature. Justice Jackson suggested that St. Isidore seeks a unique “benefit” not available under Oklahoma’s secular education framework.
Conversely, Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, leaned heavily on precedents like Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), which prohibit excluding religious entities from public benefits due to their faith-based character. Justice Kavanaugh was particularly vocal, describing Oklahoma’s exclusion as “rank discrimination against religion,” arguing that religious institutions cannot be treated as “second class” in public programs.
Justice Sotomayor probed whether the Free Exercise Clause overrides the Establishment Clause, raising concerns about public funds supporting religious teachings. Campbell clarified that St. Isidore’s model does not compel students to adopt Catholic beliefs, mitigating Establishment Clause concerns.
Broader Implications
The Justices also explored the potential nationwide impact of their ruling. Garre warned that allowing religious charter schools could invalidate charter school laws across the U.S., which typically require nonsectarian operations. McGinley, however, argued that a ruling for St. Isidore would simply expand school choice by ensuring religious options are not excluded.
Liberty Counsel, which filed an amicus brief on behalf of Covenant Journey Academy, emphasized parental rights in education. “When a state decides to subsidize private education, it cannot disqualify institutions based on their religious character,” the brief stated. Liberty Counsel Founder Mat Staver added, “School choice strengthens education, and the High Court has the chance to affirm that parents have the right to direct the education of their children.
