Supreme Court Weighs the Establishment Clause Against the Free Exercise Clause for Nation’s First Publicly Funded Religious Charter School

Oklahoma Statewide Charter School Board v. Drummond

The U.S. Supreme Court heard two hours of oral argument Wednesday in a case that laid bare ideological fault lines in the Court concerning the tension between the First Amendment’s two clauses on religion, one guaranteeing its free exercise, the other forbidding any establishment of religion. While the Court has recently leaned in the direction of religious freedom, the recusal of Justice Amy Coney Barrett added a note of drama, raising the real possibility of a 4-4 split that would leave intact the Oklahoma Supreme Court’s decision blocking the school.

The case began when the Archdiocese of Oklahoma City and the Diocese of Tulsa created St. Isidore of Seville, a virtual Catholic school intended to serve all families, including those in rural and underserved areas. The Oklahoma Statewide Charter School Board approved St. Isidore’s application. But state Attorney General Gentner Drummond took the board to court, claiming it had violated both state and federal law by approving a religious school as part of the charter system. The Oklahoma Supreme Court agreed with the attorney general, ruling that charter schools are public entities and thus must be secular.

We’ve made the case that this ruling is “eminently overturnable,” resting on a legal framework polluted by Blaine Amendments – a relic of 19th-century anti-Catholic bigotry. As we explained when the Court first agreed to hear this case, the Oklahoma law’s exclusion of religious institutions from an otherwise open charter school system violates the Free Exercise Clause of the First Amendment.

Justice Brett Kavanaugh seemed to see it the same way.
 
“Those are some of the most important cases we've had,” he said, referencing two precedents, Espinoza and Carson, “saying you can't treat religious people and religious institutions and religious speech as second class in the United States.” He called Oklahoma’s policy “rank discrimination against religion,” noting that religious schools were not asking for special treatment, just the right to compete on equal footing.

Justice Samuel Alito took that concern a step further. He accused the Oklahoma attorney general’s argument of reflecting “hostility toward particular religions,” particularly Islam. Referring to Drummond’s statements warning that approval of St. Isidore would compel approval of schools run by “reprehensible” sects, Alito said those arguments “reek of hostility” and reflect an “unsavory discriminatory history” in the state’s constitutional framework.

One question that continued to arise in the oral argument centered on whether St. Isidore, as a charter school, is a state actor. If so, then its religious character would trigger establishment clause concerns. But if St. Isidore is a private actor merely contracting with the state, then exclusion based on religion becomes unconstitutional discrimination. “Casting the cloak of state action too broadly risks intruding on individual liberty,” Michael McGinley, attorney for St. Isidore, told the Court.
 
Justice Neil Gorsuch seemed to agree, warning that a ruling against the school could incentivize states to exert more control over charter schools, curbing the innovation those schools were meant to foster. Gorsuch also asked a series of questions to probe whether an educational institution such as St. Isidore could be considered a private organization for the purposes of federal law, but a public institution for the purposes of state law. This probing gives a sense of how Justice Gorsuch, and perhaps the Court, might parse the principles of this case.

The more liberal justices pushed back forcefully. Justice Elena Kagan warned of a “floodgate” effect that could compel states to fund every kind of religious school, including those with doctrines “super different” from mainstream religious or secular values. Justice Sonia Sotomayor bluntly declared: “What you’re saying is the Free Exercise Clause trumps the Establishment Clause.” Justice Ketanji Brown Jackson argued that St. Isidore was asking for a benefit not granted to anyone else – the right to operate a religious public school – although Oklahoma had every right to set up a secular charter system.
 
Chief Justice John Roberts’ few comments suggested that he is weighing the issue with caution. He noted that unlike Trinity Lutheran, Espinoza, or Carson, this case involves “much more comprehensive involvement” by the state in the charter school program. Chief Justice Robert’s terse demeanor may be a clear signal he will be the deciding vote.

Meanwhile, Gregory Garre, representing the state, warned of “uncertainty, confusion, and disruption” if the Court rules in favor of St. Isidore, arguing it would upend the laws of 47 states and the federal charter school program, all of which bar religious charter schools. But that argument overlooks what the First Amendment demands – neutrality, not hostility, toward religion.

General Drummond’s likening of the inclusion of a Catholic school in the state’s charter program to a private takeover of the operations of the Oklahoma Highway Patrol, to create a Catholic Highway Patrol, is as unserious as it is inapt. No student would be forced to attend St. Isidore. Families would choose the school, and the state’s funds would follow the child. That’s no different in substance than school voucher programs the Court has repeatedly upheld. The state didn’t design St. Isidore, doesn’t run it, and shouldn’t be allowed to exclude it for being religious.

Protect The 1st hopes the Court recognizes that this case is not about religious favoritism. It is about ending religious exclusion. Once Oklahoma opens the door to private educational providers, it cannot slam that door shut on faith-based institutions. St. Isidore deserves the same opportunity to serve Oklahoma families as any other charter school.

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