Divided Supreme Court Rejects State Funding for Religious Charter Schools

​Protect The 1st is disappointed by the U.S. Supreme Court’s 4-4 deadlock that blocks public funding of a religious charter school in Oklahoma.
 
The ruling, composed of only two sentences, leaves in place an Oklahoma Supreme Court decision to deny St. Isidore of Seville Catholic Virtual School its prospective status as the nation’s first publicly funded religious charter school.
 
This dispute started in 2023, when Oklahoma’s charter school board okayed an application by the archdiocese of Oklahoma City and the diocese of Tulsa to create St. Isidore. The school’s plan centered around online learning to address the demand for quality instruction across the Sooner State’s charter school network.
 
Soon after, Oklahoma attorney general Gentner Drummond went to the Oklahoma Supreme Court, asking it to invalidate the charter board’s contract with the school. In a 7-1 opinion, the court ruled against allowing public charter funds to support St. Isidore, holding the funding of online religious schools by the state to be unconstitutional.

In her lone dissent, Justice Dana Kuehn made the compelling point that taking the state’s money would make St. Isidore a publicly funded school, but not a “public school.” Judge Kuehn wrote:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”
 
Indeed, as long as a religious school meets the state’s teaching requirements for math, science, English and other core subjects, it should be eligible for any public benefits made available to any other private school. Oklahoma’s rejection of this common sense, guiding principle is based on the antiquated Blaine Amendments – anti-Catholic laws passed largely in the 19th century to prevent Catholic schools from receiving public funding. These laws, which exist in 37 states, remain in force as living relics of anti-Catholic bigotry from a bygone era.
 
Moreover, the Supreme Court of the United States has effectively ruled in three recent cases that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
 
In Trinity Lutheran Church v. Comer, the Court ruled that a Missouri policy denying religious organizations access to playground resurfacing grants violated the Free Exercise Clause. In Espinoza v. Montana Dept. of Revenue, the Court held that a Montana state constitutional provision barring aid to any school “controlled in whole or in part by any church, sect, or denomination” was similarly unconstitutional. And in Carson v. Makin, the Court found that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments also failed to pass constitutional muster.
 
Attorney General Drummond, the de facto victor in this case, seems to believe that contracting with the state makes a charter school a public school, a position with far-reaching implications for future state contractors of any religious affiliation. We heartily agree with Justice Kuehn – and so apparently does at least half of the Supreme Court (Justice Amy Coney Barrett recused herself due to a likely conflict emanating from her former position at Notre Dame).
 
As the Alliance Defending Freedom – representing the Oklahoma Statewide Charter School Board – said in its certiorari petition:
 
“The Oklahoma Supreme Court’s conclusion that Trinity Lutheran, Espinoza, and Carson ‘do not apply to the governmental action in this case’ fails along with the state-action premise on which it rests … St. Isidore is not a state actor, so the lower court’s talismanic invocation of the phrase ‘governmental action’ does not distinguish this Court’s cases.”
 
But there is good news amid the bad news – the recusal of Justice Amy Coney Barrett almost certainly tilted the balance against St. Isidore. This augurs well for future cases on the equal treatment of religious based schools, as the Court has already done in Carson v. Makin.
 
States should take this opportunity to repeal prejudiced Blaine Amendments, and maybe find another, future opportunity for action that doesn’t trigger a recusal. 

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