Church school, state school, or both?

At the Supreme Court on Wednesday morning, justices considered a Roman Catholic charter school’s claim that it is entitled to public funding in the same manner as nonreligious schools. The school’s supporters say a favorable ruling would increase educational opportunities and promote the free exercise of religion, while opponents say it would involve the government in religious indoctrination and run afoul of the separation of church and state.

St. Isidore of Seville Catholic Virtual School petitioned the high court in October. The Oklahoma Supreme Court ruled in June 2024 that a contract between the state and the school violated the First Amendment’s establishment clause and state laws barring public funding to sectarian schools.

A state board initially approved a contract with the proposed charter school in June 2023, finding its approval in line with recent Supreme Court rulings. But Republican Attorney General Gentner Drummond asked the state’s high court to set aside the contract. In his lawsuit, Drummond raised the specter that approving St. Isidore would require the state to allow “extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law.”

Much of the argument Wednesday focused on whether the school would be, as the state argued, a “state actor”—essentially an arm of the state—or, as the school contended, a privately operated educational contractor.

School attorney James Campbell, arguing on behalf of the Oklahoma Statewide Charter School Board, pointed to Supreme Court precedent. “When a state creates a public program and invites private actors, it can’t exclude people or groups because they’re religious,” he told justices. Just because Oklahoma labels charter schools as “public” and provides public funding for them does not mean they are surrogates for the state, he said. They are run by private entities and have wide latitude to implement their own mission, curriculum, and operations, he added.

Campbell, who is chief legal counsel for Alliance Defending Freedom, staked his claim on three Supreme Court rulings—all within the last decade. In the 2017 case Trinity Lutheran Church of Columbia, Inc. v. Comer, the court held that Missouri violated the free exercise clause when it denied a church preschool a grant otherwise available to nonprofit organizations for installing recycled tire playground surfaces.

Three years later, in Espinoza v. Montana Department of Revenue, the high court struck down a Montana constitutional provision that barred a tuition grant for parents sending their children to a religious school. And in 2022, in Carson v. Makin, the court applied the same principle to Maine’s policy of not providing a tuition grant to parents for children to attend a religious school in a county where no public school was available.

All three liberal justices questioned whether Oklahoma’s case fell in line with the nondiscrimination rule applied in the trio of earlier cases. When Justice Ketanji Brown Jackson suggested that the public benefit provided was a secular education, Campbell responded that the state of Maine in Carson made the same argument and that the Supreme Court rejected it. Justice Sonia Sotomayor pointed out that the essence of the establishment clause prevents the government from establishing religion. “But what you’re saying is that the free exercise clause always trumps the establishment clause,” she said.

St. Isidore attorney Michael McGinley doubled down on the issue of whether a charter school was a state actor or a private entity with wide latitude in determining its curriculum. He argued that, to be a state actor, a charter school would have to be both created and controlled by the state. Neither is true in Oklahoma, he said.

Newly confirmed U.S. Solicitor General D. John Sauer backed the board and school, telling justices that Oklahoma in no sense controlled the programs, staffing, or curriculum of the school. “Providing education through charter schools is not a traditional and exclusive public function,” he argued. “And their control by privately appointed directors refutes any suggestion of public entwinement.”

Representing the state, Gregory Garre argued that Oklahoma law labels charter schools as public and allocates taxpayer funding for them. The state also exercises a high degree of control over the schools, providing supervision and oversight of its operations, said Garre.

In perhaps his strongest argument for state control, Garre ticked off a list of ways in which the state controls charter schools, even down to mandating instruction on dangling modifiers. “I’m delighted to hear they’re still teaching the problems of dangling modifiers in Oklahoma’s schools,” Justice Neil Gorsuch said.

Justice Brett Kavanaugh asked Garre how a ruling for the state might affect other ministries such as food banks, homeless shelters, adoption agencies, and refugee ministries that receive federal funding. Would they become state actors subject to state regulation? asked Kavanaugh.

“In none of those cases do you have contractees that actually become a part of the state as charter schools do,” countered Garre, an answer that didn’t seem to satisfy Kavanaugh or Gorsuch.

“When you have a program that’s open to all comers except religion … that seems like rank discrimination against religion, and that’s the concern that I think you need to deal with here,” Kavanaugh said later in the hearing.

After listening to the morning’s arguments, Carl Esbeck, a religious liberty expert and professor at the University of Missouri School of Law, said it was likely that a majority of justices would side with the board and St. Isidore. But he added that a question Chief Justice John Roberts asked insinuated he might be uncomfortable with the possible ramifications of a ruling for the school. Roberts suggested that Trinity Lutheran, Espinoza, and Carson were about “little stuff” but that this was much more “comprehensive.”

“It’s a basic principle of law that what’s true in little things is true in big things,” said Esbeck. “The Constitution doesn’t change with the dollar amount.”

Justice Amy Coney Barrett—a conservative court member who likely would have been favorable to the school’s argument—recused herself from the case, raising the prospect of a 4-4 tie. In that event, the ruling of the Oklahoma Supreme Court would stand. That means that for the school to prevail, every conservative member of the court must rule in the school’s favor. Barrett did not indicate—and was not required to—why she recused herself, but commentators speculate that it was because of a professional relationship with a former colleague that at one time represented St. Isidore.

Seven states joined South Carolina in a brief supporting the school’s position. In a split with fellow Republican Drummond, Superintendent of Public Instruction Ryan Walters, joined by the Oklahoma Department of Education and State Board of Education, backed St. Isidore. “If charter schools are state actors, they may feel forced to color within lines drawn by the State—matching public schools’ curricula, adopting their educative methods, and rejecting diverse or innovative perspectives for fear of liability or losing the State’s blessing,” they argue.

One group stands to win or lose the most from the court’s ruling: the mostly low-income children, many from rural areas, that would gain access to St. Isidore’s virtual education. “For the poor and unpowerful, a good education always seems to be what the other people get,” wrote the Ohio think tank The Buckeye Institute in its brief.

But a win for the school could have some unintended consequences. Some states may choose to reassert control over charter schools or even abandon them so as not to allow public funding of religious schools, Esbeck said.

He pointed to another unknown. “If Muslims and Buddhists and Hindus and [adherents to] other religions start opening their charter schools, our culture will become more and more fractured,” he said. “Kids who grow up in a Muslim school are going to have a different set of cultural values when they reach adulthood than a kid who goes to a Catholic school or one who goes to a government school.”

A ruling in the case is expected by late June or early July.