WASHINGTON — Oklahoma will not be able to launch the nation’s first religious public charter school after the Supreme Court deadlocked 4-4 Thursday in a major case on the separation of church and state.
The decision by the evenly divided court means a ruling by the Oklahoma Supreme Court that said the proposal to launch St. Isidore of Seville Catholic Virtual School violates both the federal Constitution and state law remains in place. St. Isidore would have operated online statewide with a remit to promote the Catholic faith.
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Paul Coakley, the archbishop of Oklahoma City, and David Konderla, the bishop of Tulsa, said in a joint statement that they are “exploring other options” to provide an online education statewide.
“Families across the state of Oklahoma deserve the educational opportunities presented by St. Isidore of Seville Catholic Virtual School,” they added.
As there was no majority, the court did not issue a detailed written decision, and the case sets no nationwide precedent on the contentious legal question of whether religious schools must be able to participate in taxpayer-funded state charter school programs.
A key factor in the outcome was that conservative Justice Amy Coney Barrett, who would have been the deciding vote, did not participate in the case. She did not explain why, but it is most likely because of her ties with Notre Dame Law School. The law school’s Religious Liberty Clinic represents the school.
The one-page decision did not say how each justice voted. During oral arguments last month, most of the court’s conservatives indicated support for the school while liberals expressed concern. At least one conservative is likely to have sided with the liberals, most likely Chief Justice John Roberts.
The court, with Barrett on board, is likely to be asked to weigh in on the issue in future cases, though none are likely to reach the justices imminently.
The Oklahoma case was a victory for state Attorney General Gentner Drummond, who challenged a state board’s approval of the school and found himself on the opposite side of fellow Republicans in the state who backed the idea.
Drummond, who is running for governor, said in a statement that the decision was a “resounding victory for religious liberty” that would ensure that taxpayer money would not go toward “radical Islamic schools,” as well as the Catholic school at issue in the case.
Rachel Laser, president of Americans United for Separation of Church and State, which challenged the school’s approval in a separate case, also welcomed Thursday’s decision.
“We will continue our efforts to protect inclusive public education. We call on this nation to recommit to church-state separation before this safeguard of democracy and freedom is further attacked,” she said in a statement.
Oklahoma Gov. Kevin Stitt described the decision on X as a “non-decision” that did not resolve the issue.
“This is far from a settled issue,” wrote Stitt, a Republican. “We are going to keep fighting for parents’ rights to instill their values in their children and against religious discrimination.”
The case highlights tensions within the Constitution’s First Amendment; one provision, the Establishment Clause, prohibits state endorsement of religion or preference for one religion over another, while another, the Free Exercise Clause, bars religious discrimination.
The Oklahoma Supreme Court had cited the state’s interest in steering clear of Establishment Clause violations as a reason not to allow the proposal, submitted by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, to move forward.
The state approved the proposal for St. Isidore in June 2023 despite concerns about its religious nature, prompting Drummond to sue.
The U.S. Supreme Court, when Barrett is participating, has a 6-3 conservative majority that often backs religious rights. In recent years, it has repeatedly strengthened the Free Exercise Clause in cases brought by conservative religious liberty activists, sometimes at the expense of the Establishment Clause. Some conservatives have long complained that the common understanding that the Establishment Clause requires strict separation of church and state is incorrect.
Lawyers representing the school and the Oklahoma Statewide Charter School Board sought to portray the dispute as similar to a series of recent rulings in which the court said that under the Free Exercise Clause, states cannot bar religious groups from government programs that are open to everyone else.
During the oral argument, Roberts pushed back, indicating that he saw the schools case as different from the previous decisions.
Those cases, he said, “involved fairly discrete state involvement” compared with Oklahoma’s charter school program.
“This does strike me as a much more comprehensive involvement,” he added.
The push for religious public charter schools dovetails with the school choice movement, which supports parents using taxpayer funds to send their children to private school. Public school advocates see both efforts as broad assaults on traditional public schools.
A key question left unresolved in the Oklahoma case is whether charter schools are indistinguishable from public schools, which factors in to whether they have religious rights and can bring free exercise claims in the first place.
Currently, all 47 states that allow charter schools consider them to be public schools and bar religious schools from participating in their programs. As was raised during oral arguments, there is also a federal program with funds for charter schools that prevents money from going to sectarian schools.
With no other states close to approving religious charter schools, said Stephanie Barclay, an expert on religious liberty at Georgetown Law School, there are no cases pending that raise the precise issue as the Oklahoma dispute.
But she highlighted a case from Maine that raises questions about the extent to which religious schools can be barred from receiving government funding through tuition assistance, which the Supreme Court may have a chance to hear relatively soon if it wishes to further strengthen the Free Exercise Clause.
“That’s a more likely next step the court could take,” she said.