The Supreme Court was deadlocked on Thursday on whether to allow Oklahoma to establish the country’s first taxpayer-funded religious charter school.
The court split 4-4, with Justice Amy Coney Barrett recusing herself from the proceedings, therefore affirming the Oklahoma Supreme Court’s ruling, which had blocked the approval of a charter for St. Isidore of Seville Catholic Virtual School because of its religious affiliation. The high court did not elaborate on the reason for its decision.
“The judgment is affirmed by an equally divided Court,” according to the unsigned ruling, which did not note how any individual justice ruled on the case.
The Oklahoma Supreme Court found in its own ruling that a religious charter school would violate the state constitution. The high court’s decision only leaves in place the ruling from the Oklahoma Supreme Court, meaning it will not set precedent, and the question of taxpayer funding for religious charter schools could be brought up again before the justices.
Oklahoma Attorney General Gentner Drummond sued to block approval of the taxpayer-funded religious charter school, claiming that allowing such arrangements could lead to religious indoctrination. He also argued it would be counter to the Constitution’s establishment clause, which prevents the establishment or creation of a state religion.
Drummond, a Republican, took a victory lap Thursday, claiming the court’s split decision, affirming the lower court’s ruling, as a win for his argument.
“The Supreme Court has ruled in favor of my position that we should not allow taxpayer funding of radical Islamic schools here in Oklahoma,” the Oklahoma attorney general posted on X. “I am proud to have fought against this potential cancer in our state, and I will continue upholding the law, protecting our Christian values and defending religious liberty.”
Alliance Defending Freedom Chief Legal Counsel Jim Campbell argued on behalf of the Oklahoma Charter School Board that the proposed institution was “neither the government nor engaged in state action” and is a private initiative with control over its curriculum and leadership.
Campbell expressed disappointment in the ruling Thursday, but he noted that it opened the door for the court to revisit the issue in the future.
“Oklahoma parents and children are better off with more educational choices, not fewer,” Campbell said. “While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future.”
“The U.S. Supreme Court has been clear that when the government creates programs and invites groups to participate, it can’t single out religious groups for exclusion, and we will continue our work to protect this vital freedom for parents and students,” he added. “We remain proud of our clients, the Oklahoma Statewide Charter School Board, and their brave stand for educational freedom.”
During oral arguments, Chief Justice John Roberts initially appeared skeptical of St. Isidore’s arguments but gradually appeared receptive to them. The high court’s conservative justices seemed open to the idea that excluding religious institutions from charter applications could be discriminatory, while the liberal justices appeared more concerned about the separation of church and state.
Neal McCluskey, the director of Cato Institute’s Center for Educational Freedom, said he believes Roberts was the swing vote to create the 4-4 deadlock and that the overall outcome was unsurprising.
“While we do not know which justices voted for or against the Catholic charter school, Chief Justice Roberts indicated early on in oral arguments that he saw religious charter schooling as more complex than school choice programs that allow families to use public funds at private schools,” McCluskey said Thursday. “Those were the subjects of much of the precedent petitioners cited.”
“Roberts was likely the swing conservative vote, and while this decision does not establish precedent, it potentially sends an important message: The right way to address discrimination against religion by our public education system is through private school choice programs, not charters,” he added.
Barrett, whose confirmation in 2020 gave the high court its current 6-3 conservative majority, recused herself from the case without any explanation. She had previously been a professor at the University of Notre Dame Law School.
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Legal analysts speculated that Barrett’s recusal decision stemmed from her personal ties to Nicole Garnett, a Notre Dame law professor and early legal adviser to St. Isidore.
While Garnett did not appear in the case or submit a legal brief, both she and her husband, Notre Dame law professor Richard Garnett, are affiliated with Notre Dame’s Religious Liberty Clinic, which represented St. Isidore.
