Religious Charter School Blocked After Supreme Court Deadlock

The U.S. Supreme Court, in a swift and somewhat surprising resolution of the term’s most closely watched education case, on Thursday announced a 4-4 deadlock in a case challenging Oklahoma’s unprecedented approval of a religious charter school.

“The judgment is affirmed by an equally divided court,” Chief Justice John G. Roberts Jr. announced from the bench this morning, referring to the 2024 decision by the Oklahoma Supreme Court that such a charter would violate the state and federal constitutions.

Because the state high court had ruled that a charter run by two Catholic dioceses in the state would violate the state and federal constitutions, the U.S. Supreme Court’s action effectively blocks Oklahoma from granting a charter to the St. Isidore of Seville Catholic Virtual School. The high court’s action affirms a the Oklahoma high court’s decision against the charter but does not set a nationwide precedent either prohibiting or greenlighting religiously affiliated charter schools. The justices issued only a brief order and no written opinion explaining their votes, as is customary in such deadlocks.

More legal challenges are almost certain, and the issue may return to the justices in the coming years. The deadlock was made possible by the recusal of Justice Amy Coney Barrett from the Oklahoma case.

She did not provide a reason, but most legal observers believe it is related to her long tenure at the University of Notre Dame law school, whose religious liberty clinic helped argue on behalf of St. Isidore. Barrett is also close friends with Notre Dame law professor Nicole Stelle Garnett, who wrote an influential paper on why religious charter schools would pass muster in many states and who had advised on the proposal for St. Isidore at an early stage.

The outcome was a relief to opponents of the idea and a disappointment to advocates for St. Isidore.

“Today’s nondecision has led many legal scholars of both religion and education to exhale a tremendous sigh of relief,” said Justin Driver, a professor at Yale Law School and a leading education law scholar. “The outcome ensures that it will continue to be unlawful for public schools, or whatever variety, to teach religion as truth, and that is good news for our religiously diverse nation.”

Garnett said in a statement, “I’m obviously disappointed at the result, but the order has no precedential weight. The question whether barring religious charter schools violates the Constitution remains live, and I remain confident that the court will eventually rule that it does.”

How the justices likely split

There was widespread speculation on how the eight participating justices voted in the case. Based on the April 30 oral argument in Oklahoma Statewide Charter School Board v. Drummond, it appeared that conservative justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh leaned strongly in support of religious charters.

“All a religious school is saying is, don’t exclude us on account of our religion,” Kavanaugh said during the argument.

The court’s three liberal members, Justice Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, appeared deeply skeptical that providing direct government aid to a school that teaches a religious viewpoint would pass muster under the First Amendment’s prohibition on government establishment of religion.

There will be “a line out the door” of religious groups seeking to establish their own publicly funded charter schools, “if you can do this consistent with your religious belief,” Kagan said.

Justice Neil M. Gorsuch, a conservative who has strongly supported First Amendment free exercise of religion claims in recent years, was slightly harder to read, and some legal podcasters had suggested his vote may be in play against St. Isidore.

But the consensus among court watchers was that Chief Justice Roberts most likely joined with the three liberal justices to create the deadlock. He is the author of three recent opinions that overturned state exclusions of religious schools from generally available aid programs, and he asked several questions that gave some comfort to religious charter supporters.

But he also gave hope to opponents of St. Isidore by suggesting that the proposed grant of charters and state aid to religious organizations would go a major step beyond the “fairly discrete state involvement” of those three recent cases—a 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, its 2020 decision in Espinoza v. Montana Department of Revenue, and its 2022 ruling in Carson v. Makin.

“This does strike me as a much more comprehensive involvement,” Roberts said to the lawyer for the Oklahoma charter school board, referring to Oklahoma’s proposed funding of a charter operated by the Catholic Church. That suggested he may have seen a meaningful legal distinction between the recently approved aid programs and the scope of a state directly funding a religiously affiliated charter.

A unique charter proposal

St. Isidore would have been sponsored and controlled by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa. It would have received up to $2.7 million in state funds in its first year, serving about 400 students, with both figures expected to grow.

After a predecessor of the state charter board approved a contract with St. Isidore—amid much Oklahoma political intrigue—state Attorney General Gentner Drummond, a Republican, asked the state Supreme Court to intervene.

That court ruled in 2024 that St. Isidore would violate both the federal Establishment Clause and a state constitutional provision that bars Oklahoma from using public money for the benefit or support of any religious institution. The court also ruled that charter schools in Oklahoma, including St. Isidore, are governmental entities performing public functions, and, therefore, must operate as public schools.

Drummond, in his initial reaction to the U.S. Supreme Court deadlock on May 22, referred to one of his arguments that approving a Catholic charter would lead other faiths to seek similar arrangements.

“The Supreme Court has ruled in favor of my position that we should not allow taxpayer funding of radical Islamic schools here in Oklahoma,” Drummond said on X. “I am proud to have fought against this potential cancer in our state, and I will continue upholding the law, protecting our Christian values and defending religious liberty.”

Gregory G. Garre, a former U.S. solicitor general who argued on behalf of Drummond, said via email, “We are thrilled with the court’s decision today, leaving intact the charter school laws in Oklahoma and across the country.”

James A. Campbell, a lawyer with the conservative group Alliance Defending Freedom who argued for the Oklahoma charter board in support of religious charters, said in a statement that, “While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future.”

“The U.S. Supreme Court has been clear that when the government creates programs and invites groups to participate, it can’t single out religious groups for exclusion, and we will continue our work to protect this vital freedom for parents and students,” Campbell added.

Roman Catholic Archbishop Paul S. Coakley of Oklahoma City and Bishop David A. Konderla of Tulsa also expressed their disappointment in a statement.

“Families across the state of Oklahoma deserve the educational opportunities presented by St. Isidore,” they said. “In light of this ruling, we are exploring other options for offering a virtual Catholic education to all persons in the state.”

Ryan Walters, Oklahoma’s Republican state superintendent of public instruction and a supporter of the religious charter, said in a statement that “allowing the exclusion of religious schools from our charter school program in the name of 19th century religious bigotry is wrong.”