The case comes as the court has lowered some barriers between church and state.

Since the first charter school opened 33 years ago in St. Paul, Minn., the movement for independently run but publicly financed and supervised education has exploded, now serving nearly four million students. And every one of the nation’s 8,000 charter schools is nonsectarian, because state and federal law has required it.

That appeared likely to change after Supreme Court arguments Wednesday, where conservative justices suggested it was discriminatory to exclude schools that teach religious doctrine from Oklahoma’s public charter school program. The case, one of the biggest on church and state in a generation, could hinge on the justices’ view of charter schools as private entities seeking public grants rather than extensions of the public school system that provides free education for all children.

“You can’t treat religious people and religious institutions and religious speech as second class in the United States,” said Justice Brett Kavanaugh.

The court’s three liberals saw the mix of government and religion as a recipe for disaster, as state-mandated curricula and nondiscrimination laws were bound to conflict with some sectarian beliefs.

“Religious communities are really different in this country and are often extremely different from secular communities in terms of the education that they think is important for their young people,” said Justice Elena Kagan.

With Justice Amy Coney Barrett recused, an eight-member court heard the case. Among the five conservatives, only Chief Justice John Roberts suggested that recent high court precedent might not require recognition of religious charter schools.

The Oklahoma case is the culmination of a debate that has been brewing for years.

“It’s abundantly clear that the First Amendment protects religious organizations’ right to participate,” John Meiser, the head of a religious liberty clinic at the University of Notre Dame law school, which represents a proposed online Catholic charter school in Oklahoma, said in an interview.

The state’s Republican attorney general, Gentner Drummond, said that argument turns the charter school concept upside down. Defining them as private schools “is exactly the opposite of what the charter school movement has been arguing for the last 30 years. They have fought hard to be considered public schools and have complied with all state public school requirements,” he said.

Since all religions would be entitled to taxpayer funds to teach their faith, the next charter school could “advocate the benefits of worshiping Satan or worshiping the Wiccan faith,” or “an extreme Shariah discipline,” Drummond said. Better, he said, for the state to provide only “nonsectarian public education, because then you don’t have Muslim and Jewish families funding Christian education and vice versa.”

The justices struck down some limits on government funding of private religious education in a trio of cases from 2017 to 2022 and, in another 2022 case, expanded opportunities for public school coaches and teachers to pray on campus with students.

A victory for the school could provide a lifeline for Catholic schools in particular, which have been losing students as tuition rises. But it could pose a challenge to the nation’s public school systems, which have lost student enrollment recently and face new uncertainty from a Trump administration determined to shut downthe Education Department.

Embodying the issue’s divisive nature, the case pits arms of Oklahoma’s Republican-controlled state government against each other. On one side is the Oklahoma Statewide Charter School Board, backed by the Republican governor and firebrand schools superintendent. The board narrowly voted in 2023 to authorize creation of the nation’s first religious public charter school, St. Isidore of Seville Catholic Virtual School. Opposite stands Drummond, now running for governor, who concluded that funding St. Isidore violated state law and the U.S. Constitution.

Last year, the Oklahoma Supreme Court, in a 6-2 vote, agreed with Drummond.

“Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs,” Justice James Winchester wrote for the court.

Charter schools emerged in the 1990s as an alternative to the school voucher movement—public schools that could be innovative laboratories operating outside many of the strict regulations that govern local school systems.

St. Isidore contends that while it is a private contractor, it will comply with the relevant provisions of the state charter school law: Like regular public schools, it would be free of charge and accept students regardless of their faith.

The case originated when officials at the Archdiocese of Oklahoma City had a revelation in late 2020. Online education—which had been thrust upon schools begrudgingly during the Covid-19 pandemic—could offer an opportunity.

“Although maybe it’s not the ideal education for everybody, it’s a possibility that we could deliver world-class virtual education,” said Michael Scaperlanda, the archdiocese’s chancellor. “That would be a way to get Catholic education into more rural areas.”

Archdiocese officials spoke with Notre Dame law professor Nicole Stelle Garnett, who had published a paper arguing that under recent Supreme Court precedents, banning religious charter schools violates the First Amendment right to free exercise of religion.

Garnett argued that “preserving faith-based schools as an option, especially for those serving disadvantaged students, will require a dramatic expansion of the public resources available to them.” Religious charter schools would be “one way to accomplish that goal.”

She is a close friend and former faculty colleague of Justice Barrett, perhaps explaining her recusal from the case. Garnett connected church officials to Notre Dame’s religious liberty clinic, which agreed in 2021 to represent the church pro bono in its efforts to open a charter.

The proposed St. Isidore school was named for a sixth century scholar whom Pope John Paul II designated in 1997 as patron saint of the internet. It posted applications for teaching positions, noting that staff would be “required to uphold the standards of the Catholic Church” in their “work and personal life.” A student handbook explained that “all subjects at the school are informed by Catholic faith and morals.”

Some charter school advocates fear a win for St. Isidore could prompt a political backlash in blue states, with legislators opting to limit charter schools rather than fund religious schools. “That could have devastating impacts,” said Myrna Castrejón, president and chief executive of the California Charter Schools Association.

On Wednesday, however, U.S. Solicitor General John Sauer, arguing in support of religious charter advocates in Oklahoma, said that wasn’t necessarily so. States wishing to maintain nonsectarian public charter systems could avoid delegating their operation to private boards, like the Oklahoma law does, and instead strengthen government control of such schools. “My understanding is that California’s system is somewhat like that,” he said.

“So a holding here may apply in some states and may not apply in others,” said Justice Neil Gorsuch.

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Source: Supreme Court Signals Willingness to Allow Religious Charter Schools – WSJ