Supreme Court to consider bid for first religious charter school

The Supreme Court will hear oral arguments on Wednesday in a Catholic virtual charter school’s bid to become the nation’s first religious charter school. The Oklahoma charter school board that approved the Catholic school’s application tells the justices that a state supreme court ruling invalidating its contract with the school violates the Constitution and harms lower-income families. But the state’s attorney general counters that a ruling in favor of the Catholic school could upend the charter-school system nationwide. 

The Oklahoma law governing charter schools requires them to be non-religious “in their programs, admissions policies, and other operations.” The dispute now before the court began when the archdiocese of Oklahoma City and the diocese of Tulsa applied to the state’s charter school board to establish a virtual Catholic charter school, St. Isidore of Seville. The purpose of the school – which was named after the patron saint of the internet and projected to have an initial enrollment of 500 students, approximately half of whom would come from lower-income families – is explicitly religious: It “fully embraces” the Catholic Church’s teachings, “fully incorporates” them “into every aspect of the” school, and intends to participate “in the evangelizing mission of the church.”

The charter school board approved St. Isidore’s application in 2023, with the school slated to start in 2024. The contract that the charter school board signed with the school indicated that the school is allowed to freely exercise its religious beliefs. 

The state’s attorney general, Republican Gentner Drummond, went to the Oklahoma Supreme Court, seeking an order directing the charter school board to invalidate its contract with St. Isidore. 

The state supreme court granted that request. It concluded that St. Isidore is a public school and therefore required under the state charter-school law to be non-sectarian. That mandate, it added, “is in line with the Oklahoma Constitution and the Establishment Clause, which both prohibit the State from using public money for the establishment of a religious institution.” 

The state supreme court rejected the contention that St. Isidore is a private actor working under a contract with the state. The state, it reasoned, is providing money for the school to teach a Catholic curriculum, which students will be required to participate in. And the school will be a “government entity,” it found, without any right to the free exercise of religion, because it will act as a “surrogate of the State in providing free public education.” 

The school and the charter school board came to the Supreme Court in October, asking the justices to weigh in. 

The issue of public funding for private schools is one with which the justices are very familiar: In the past eight years, the justices have sided with parents and religious institutions in three cases challenging state policies that barred them from receiving education-related funds that were available for secular, but not religious, recipients. In 2017, they ruled thatMissouri violated the Constitution when it excluded a church preschool from a state-run program to resurface its playground. Three years later, they held that Montana could not bar religious schools from a tax-credit program used to fund scholarships for children to attend private schools. And in 2022, they struck down a Maine policy that allowed public funds to be used to pay tuition at non-sectarian schools but not at religious schools. 

Urging the justices to overturn the Oklahoma Supreme Court’s decision, the charter school board first insists that charter schools are not state actors or government entities. It points to the Supreme Court’s 1982 decision in Rendell-Baker v. Kohn – in which, the charter school board contends, the justices found that there was no state action when, as in this case, “a privately operated school provided free publicly funded education through a contract with the government.”

The fact that the charter school would be labeled “public” does not, standing alone, make it a state actor, the board continued. That designation, the charter school board counters, simply indicates that charter schools receive public funding and do not charge tuition. 

Moreover, the board added, none of the factors that the court normally considers to determine whether a private entity is a state actor – such as whether the entity is intertwined with the government or whether it performs a traditional, exclusive public function – is satisfied in this case. 

More broadly, the board cautioned, the Oklahoma Supreme Court’s decision could mean that other faith-based organizations – such as those providing foster care services, adoption services, homeless shelters – could be deemed “state actors” if they partner with the government or are subject to government regulation. 

Turning to its allegation that the invalidation of its contract with St. Isidore violates the Constitution, the charter school board contends that in its recent cases the Supreme Court has made clear that states violate the Constitution’s free exercise clause when they deny religious institutions or individuals benefits or the ability to participate in a program that is otherwise generally available to everyone. 

By banning charter-school applicants affiliated with religious institutions, the board says, Oklahoma law discriminates based on religious status against both the groups that want to operate religious charter schools and the parents who want to send their children there. And the ban on charter schools with religious programs or operations, the board writes, “unlawfully discriminates based on intended religious use.” 

The state cannot try to justify its exclusion on the ground that it does not want to violate the Constitution’s establishment clause, the board writes. The establishment clause bars the government from both establishing an official religion and favoring one religion over another. In the 18th and 19th centuries, governments in the United States did fund religious schools, they note. And in any event, they argue, a state does not violate the establishment clause if it simply treats religious and secular groups the same under funding programs available to all. “This is especially true when the money from those programs flows to religious schools because of private parental choice,” the board contends. 

In fact, the board suggests, a ruling against the charter school would conflict with the establishment clause: “Rejecting St. Isidore because of its religious character, which harms the families who want to send their kids there, manifests a deep mistrust of and hostility towards faith.” 

St. Isidore adds that the state supreme court’s holding that it is a state actor “flipped the state-action doctrine on its head.” The school, it stresses, was both created by and is controlled by private actors. “Neither its Catholic affiliation nor the Catholic educational model that it independently designed are attributable to the State.” 

And the case does not present an establishment clause problem, the school insists: It simply provides another option for Oklahoma families. Students will not be required to attend the school. Instead, it “will receive students, and state funding, only through the private choices of families.” 

The Trump administration filed a brief supporting the board and the school. In its view, however, the important question is not whether the school is a state actor, but instead whether it is a government entity – which, the government argues, it is not, because the state did not create or run the school. 

The federal government acknowledges that in 2023, the Biden administration took the opposite position in a challenge to a charter school’s dress code, which barred female students from wearing shorts or pants. But now, the Trump administration explained, the government has “concluded that charter schools do not perform functions exclusively reserved to the State.”  

Oklahoma Attorney General Gentner Drummond agrees that the state begins “with common ground” with the board and the school. During the past eight years, he writes, the Supreme Court “has made clear that when a State offers a generally available public benefit to private actors, it cannot deny that benefit to religious entities.” Oklahoma, Drummond adds, “strongly supports that free exercise principle.”

But in the wake of the Supreme Court’s cases, Drummond says, there is a “clear” line: States that establish tuition-assistance programs that allow parents to use public funds for schools of their choice “cannot exclude private schools because they are religious.” But states can also choose to have public schools that provide “a strictly secular education.” 

The Supreme Court has never ruled either that the establishment clause allows or that the free exercise requires states to provide “direct aid for religious instruction in public schools.” To the contrary, Drummond contends, “creating and funding a religious public school would violate the Establishment Clause.” 

It makes no difference, Drummond asserts, that Congress and state governments provided funding for private religious schools during this country’s early history. He notes that there were no public schools when this country was originally founded in the 18th century – indeed, education was not even compulsory until the second half of the 19th century. “And since the advent of the modern public-education system, there is no history of creating — or funding — religious public schools.” 

Whether the charter schools are “state actors” is not the relevant question – as the federal government also observes in its brief – because the focus of the Supreme Court’s state-action cases is whether conduct by a private entity can fairly be attributed to the government, Drummond emphasizes. But this case is not a challenge to specific conduct by St. Isidore, Drummond observes. Instead, he writes, “it concerns St. Isidore’s very existence as a public charter school.”  

The real question, Drummond tells the justices, is whether charter schools in Oklahoma are public schools. They are, he contends, because “they bear all the classic indicia of public schools”: “They are free, open to all, subject to antidiscrimination laws, created and funded by the State, and subject to continuing government regulation and oversight as to curriculum, testing, and a host of other matters.” 

And because they are public schools, Drummond continues, charter schools in Oklahoma are also government entities. They meet both of the criteria that the court has considered in determining whether something meets that definition: They are created by the government, and the government controls them. 

Drummond pushes back against the suggestion that if St. Isidore’s is a state actor, then countless other faith-based groups would also become state actors. Those other groups are different, Drummond insists, because they are not “created by the State, delegated a traditional and exclusive state duty, nor knitted directly into the fabric of an existing public system like charter schools.” 

Reversing the Oklahoma Supreme Court’s decision, Drummond warns, could have serious implications. The federal charter school program also requires charter schools to be “public schools” that are “nonsectarian in [their] programs, admissions policies, employment practices, and all other operations.” Over the past three decades, he says, the federal charter school program has provided billions of dollars to public charter schools. Ruling that Oklahoma’s charter-school law “unconstitutionally discriminates against religion would upend the federal CSP and charter-school laws nationwide, sowing chaos and confusion for millions of charter-school students,” he contends. 

Moreover, he posits, if states are required to allow religious charter schools, they would face two options. The first would subject the religious institutions that operate the charter schools to regulations that normally do not apply to them – for example, antidiscrimination rules governing which students a school must admit, or which teachers a school can hire or fire. The other alternative would be to “grant religious charter schools a special status.” 

A brief supporting the attorney general by the National Alliance for Public Charter Schools emphasizes that the term “‘public school’ is not just a label” but instead “reflects the original intent and current operation of every state charter school statute in the country.” If the Supreme Court were to rule that charter schools are not public schools, the group says, “many charter schools — 8% of public schools — risk losing all state funding due to state constitutional bans on public funding for private schools (sectarian or not).” 

St. Isidore and the charter school board will need at least five votes to reverse the state supreme court’s ruling for the state. One of the court’s conservative justices, and one of six Catholics on the court, Amy Coney Barrett, is not participating in the case. Although she did not explain why, St. Isidore’s is represented by the religious liberty clinic at Notre Dame’s law school, where Barrett taught for 15 years before becoming a federal judge and, eventually, a Supreme Court justice. And Barrett’s close friend, Nicole Stelle Garnett (also a law professor at Notre Dame), has been a leading advocate to allow the use of public funds at religious schools. If the court were to deadlock 4-4 with Barrett recused, the Oklahoma Supreme Court’s ruling in favor of the attorney general (and against the charter school board) would stand.