Supreme Court tie vote prevents launch of government-funded parochial school
Decision means issue could return if another state OKs religious charter school
By the narrowest of margins — and without giving any clues about its reasoning beyond what justices gave during oral arguments last month — the U.S. Supreme Court today ended plans by a statewide Oklahoma school board to create the nation’s first government parochial school.
Justices split 4-4 on whether to reverse decisions by the Oklahoma Supreme Court to declare unconstitutional the proposed St. Isidore of Seville Virtual Charter School. The proposed charter school would have been operated by an independent organization run by two Catholic dioceses and would have offered a standard Catholic curriculum including religion classes and school-sponsored religious activities — all funded by taxpayers.
Because the vote was 4-4, the Oklahoma Supreme Court rulings stand but do not set a national precedent. The decision leaves open the possibility that a dispute over the state operation of religious charter schools could face the high court again if such a school is approved in a different state and challenged in court.
The case is Oklahoma Statewide Charter School Board v. Drummond.
A tie vote was possible on the nine-member court because the court’s newest justice, Amy Coney Barrett, had recused herself well before oral arguments. She did not state a reason for her recusal, although it appears possible that it was due to her professional connections with those advocating for the school.
The written opinion stated in full: “The judgment is affirmed by an equally divided Court.” In other words, the opinion did not state how individual justices voted.
However, it appears to be a near certainty, based on statements during oral arguments and past opinions, that the justices supporting St. Isidore were Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, all of them conservatives. That would leave those voting in opposition as Chief Justice John Roberts and the court’s liberal wing: Sonia Sotomayor, Elena Kagan and Katanji Brown Jackson.
Today’s decision leaves two more religion-related cases to be decided before this year’s term ends in June or possibly July:
Mahmoud v. Taylor, in which religious parents in Montgomery County, Md., are requesting that their children be excluded from English classes when certain LGTBQ-friendly books are taught. During oral arguments, a majority of justices seemed sympathetic to the parents’ concerns.
Catholic Charities Bureau v. State of Wisconsin Labor and Industry Review Commission, in which a Catholic charity wants to use a church unemployment compensation fund rather than one operated by the state. The legal question involves what types of charitable activities are determined to be religious in nature. During oral arguments, justices appeared to be sympathetic to the charity’s position.