Supreme Court sharply divided over legality of Catholic charter school
Oral arguments suggest Chief Justice Roberts holds deciding vote
This article has been updated.
The U.S. Supreme Court appeared to be split almost down the middle this morning over whether an Oklahoma statewide school board acted constitutionally last year in approving the creation of a government-funded Catholic charter school.
The court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Kentanji Brown Jackson — were highly skeptical during oral arguments of the state’s approval of the St. Isidore of Seville Virtual Charter School, while three of the conservative justices — Samuel Alito, Neil Gorsuch and Brett Kavanaugh — seemed just as sympathetic to the plan. Justice Clarence Thomas, another conservative, seemed vaguely supportive. Although justices’ views during oral arguments don’t always coincide with how they ultimately vote, the questioning suggested a 4-3 split in favor of the school among those seven justices.
Meanwhile, the views of Chief Justice John Roberts, who leans conservative but has often been a moderate voice, were not clear as he asked challenging questions of both sides. And the final justice, Amy Coney Barrett, did not participate in questioning this morning as she has recused herself from the case.1 So if Roberts ultimately sides with the school and the Oklahoma board, the result would be a 5-3 majority allowing the creation of the nation’s first religious charter school. But if Roberts agrees with the school’s opponents, the result would be a 4-4 tie. Such a tie would not create a precedent and would allow the ruling of the Oklahoma Supreme Court invalidating the school to take force.
The case is Oklahoma Statewide Charter School Board v. Drummond.
The arguments made by attorneys for both sides were fairly straightforward during today’s hearing. Attorneys for the federal and state governments and the school argued that the proposed charter school would be an independent entity contracting with the Oklahoma state government, and that to deny the entity a contract to run the school would be religious discrimination. The attorney for the opposition argued that a charter school is a government school that cannot teach religious beliefs as truth.
A string of recent Supreme Court rulings have held that a government cannot discriminate in application of school vouchers or other education support simply because the recipient schools are religious in nature. The landmark case in this category is Carson v. Makin, a 2022 6-3 decision that prevented Maine from limiting its school voucher program to secular schools only.
Kagan, in her questioning, suggested that she thought today’s Oklahoma case is different than Carson in part because charter schools are in “every respect equivalent” to public schools, whereas in the earlier Maine case the religious schools were clearly private entities subject to little government control.
And Sotomayor pointed out that “the essence of the Establishment Clause” of the First Amendment is that the the government doesn’t pay religious leaders to teach their religion. And, Jackson added, the fact that government funds would be used for religious proselytizing also raises Establishment Clause concerns.
On the other side, the most emotional words of the morning came from Alito, who criticized the Oklahoma attorney general, Gentner Drummond, who had warned that creation of a Catholic charter school could lead to the creation of other religious charter schools less favored by Oklahomans, such as Muslim charter schools. He said Drummond has made “statement after statement ... that reeks of hostility toward Islam.”
Kavanaugh was similarly forceful, saying that excluding religious groups from creating charter schools “seems like rank discrimination against religion.”
The court is likely to announce its decision on the case in June, although a ruling could come as late as July.
Barrett has not stated her reasons for recusal, although it may be tied to her personal connections with advocates for the school’s position.