In a closely watched case with significant implications for the separation of church and state, the U.S. Supreme Court on Thursday delivered a 4-4 deadlock, effectively upholding a lower court ruling that invalidated a contract establishing the nation’s first religious charter school in Oklahoma.
The tie vote leaves in place the decision of the Oklahoma Supreme Court, which had previously ruled against the creation of St. Isidore of Seville Catholic Virtual School. Justice Amy Coney Barrett did not participate in the case. The high court issued a brief, unsigned decision stating, “the judgment is affirmed by an equally divided court.”
The legal battle, argued before the Supreme Court at the end of April, had the potential to open the door for public funds to directly support religious schools. Following the arguments, attention had focused on Chief Justice John Roberts, whose questioning centered on the level of state involvement in Oklahoma’s charter school program. The issue of whether religious institutions must be permitted to participate in state charter school systems is now likely to return to the Supreme Court in a future case involving all nine justices.
The attempt to establish St. Isidore of Seville Catholic Virtual School followed a series of recent Supreme Court rulings that favored religious families and institutions challenging state-funded programs for excluding religious beneficiaries, citing violations of the First Amendment’s Free Exercise Clause. These precedents included cases involving playground resurfacing grants for a church-run preschool in Missouri (2017), tax credits for donations to private school scholarships in Montana (2020), and tuition assistance programs in Maine limited to nonsectarian schools (2022).
Nicole Stelle Garnett, a Notre Dame Law School professor who has argued that states with charter schools must allow religious charter schools to avoid Free Exercise Clause violations, expressed disappointment with the decision but emphasized that the deadlock does not establish a national precedent. “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,” she stated. Garnett is a friend of Justice Barrett, who also taught at Notre Dame Law School. The university’s Religious Liberty Clinic represented St. Isidore in the case.
A ruling in favor of the school could have paved the way for the nation’s first publicly funded religious charter school. Oklahoma Attorney General Gentner Drummond, a Republican who argued against the school’s establishment, had warned that allowing the contract to stand would disrupt laws in at least 45 states and the District of Columbia, as well as the federal charter school program, all of which mandate that charter schools be nonsectarian.
Oklahoma has operated charter schools within its public education system since 1999 and, like the majority of other states and the federal program, requires these institutions to be “nonsectarian in its programs, admission policies, employment practices, and all other operations.” The state currently has at least 30 charter schools serving over 50,000 students, receiving significant state and federal funding.
In January 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa formed St. Isidore of Seville Virtual Charter School Inc. with the explicit purpose of establishing and operating St. Isidore as a Catholic school. In May 2023, St. Isidore applied to the Oklahoma Statewide Charter School Board to operate as a virtual charter school that would “fully embrace the teachings of the Catholic Church’s Magisterium” and integrate these teachings into all aspects of the school. The school projected an initial enrollment of 500 students and anticipated receiving approximately $2.7 million in state funding in its first year.
Prior to the board’s vote, Attorney General Drummond cautioned against approving St. Isidore’s application, arguing that a previous analysis supporting the school could be used to justify taxpayer-funded religious schools, which he asserted was St. Isidore’s ultimate goal. Despite these warnings, the charter school board approved St. Isidore’s application by a 3-2 vote in October 2023, leading to the establishment of a contract between the board and the school.
Drummond subsequently sued the board directly in the Oklahoma Supreme Court, seeking to overturn the charter contract and declare St. Isidore’s establishment as a charter school unlawful. He prevailed before the state’s highest court, which ruled that as a public charter school, St. Isidore violated the state’s nonreligious requirement and the Establishment Clause of the First Amendment, particularly due to the prospect of “permit[ting] state spending in direct support of the religious curriculum and activities within St. Isidore.” The Oklahoma charter school board and St. Isidore appealed this ruling to the Supreme Court, which agreed to review the decision in January. The Supreme Court’s deadlock now leaves the Oklahoma Supreme Court’s decision in place, preventing the establishment of the religious charter school, at least for the time being.
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