The Supreme Court will hear arguments Wednesday in a blockbuster dispute over the nation’s first religious charter school, a case that critics say has prompted a “crisis of identity” in the school choice movement and that could vastly expand taxpayer funding for religious education.
The battle over St. Isidore of Seville Catholic Virtual School in Oklahoma has pit public school officials, traditional charter school advocates and the state’s Republican attorney general against powerful religious groups who say a series of recent opinions from the court’s 6-3 conservative majority has all-but already decided the case in their favor.
Charter schools – privately run but publicly funded – serve 3.8 million students in the US, offering an alternative to traditional public schools that are intended to be more innovative and less bound by state regulations. The concept took off in the 1990s and, by the 2023 school year, there were some 8,000 charter schools operating nationwide.
A ruling for St. Isidore could effectively redefine charter schools as private entities, even though most state laws – including Oklahoma’s – deem them to be public schools. That could open the door to other religious charter schools applying for funding, critics say, or it could prompt some states to restrict the schools or abandon them altogether.
“Charter schools now face a critical moment,” the National Alliance for Public Charter Schools, which has advocated for the schools, told the Supreme Court this month. “This case presents an existential threat not just to the fabric of public charter schools, but to their continued existence.”
Rachel Laser, president of Americans United for Separation of Church and State, said a decision for the school would represent a “dangerous sea change for our democracy.”
“Public schools that are open to all children are the bedrock of our communities and our democracy,” Laser told CNN. “Dividing public schools – and public-school students – along religious lines is the last thing our already-divided country needs.”
But those supporting St. Isidore say charter schools operate more like private contractors, regardless of how they’re categorized in state law. For instance, they argue, no one believes Boeing or Lockheed Martin become a public entity just because they manufacture aircraft and missile systems for the military.
And, they point out, a string of recent decisions from the Supreme Court’s conservative majority have found government efforts to separate church from state amount to unconstitutional discrimination of religion.
The K-12 virtual school, named after the informal patron saint of the internet, was created by the Archdiocese of Oklahoma City and the Diocese of Tulsa.
“St. Isidore is a private entity seeking to participate in Oklahoma’s charter school program,” the school told the Supreme Court this year. “The free exercise clause prohibits the state from denying St. Isidore and its future students this opportunity solely because it is religious.”
Started on the playground
The groups supporting St. Isidore note that the Supreme Court has time and again sided with religious groups in similar disputes in recent years. This case, they argue, is a natural continuation of that line of rulings.
In 2017, the court ruled that Missouri could not bar a Lutheran church from applying for a competitive state grant for playground resurfacing. In a quote that is often repeated throughout the briefing in the St. Isidore case, Chief Justice John Roberts wrote that Missouri’s effort to deny funding solely because the applicant was a church was “odious to our Constitution.”
An unusual mix of justices, including liberal Justice Elena Kagan and conservative Justice Anthony Kennedy, often viewed as a swing vote, backed Roberts’ view.
Three years later, the court again sided with religious groups objecting to a Montana scholarship program that – citing the First Amendment’s prohibition against “establishing” religion – barred religious schools from taking part. The court said a state doesn’t have to provide taxpayer funding to private schools. But if it chooses to do so, it cannot block the money from going to religious schools.
In that opinion, the court split along ideological lines, with conservatives in the majority and liberals dissenting.
More recently, the court ruled along ideological lines in 2022 that Maine could not exclude religious schools from a public tuition assistance program that allows parents to use vouchers to send their children to public or private schools.
“Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Roberts wrote.
In that case, Justice Stephen Breyer, then the court’s senior liberal, questioned whether a fight over charter schools was coming next.
It turns out, he was right.
“Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?” Breyer wrote in a dissent joined by liberal Justices Sonia Sotomayor and Kagan.
Barrett backs out
The Oklahoma Supreme Court ruled against the school last year, concluding that St. Isidore is a public school and therefore “must be nonsectarian.”
The school and the Oklahoma Statewide Charter School Board appealed to the US Supreme Court last fall.
When the high court agreed to hear arguments earlier this year, one member of the Supreme Court’s conservative majority – Justice Amy Coney Barrett – announced she had bowed out of the case. The decision to recuse herself, which Barrett did not explain, opens the possibility of a split 4-4 court, which would effectively block St. Isidore from opening its doors.
Barrett, who was nominated to the bench by President Donald Trump during his first term, is a former law professor at Notre Dame. The school’s Religious Liberty Clinic is part of the team representing St. Isidore.
A few months after Barrett was sworn in, she sold her home in Indiana to a recently hired professor who was taking on a leadership position at the clinic.
Michael Moreland, a law professor at Villanova University who specializes in religion, predicted that Barrett’s recusal probably won’t make a big difference. There were five other conservative votes siding with the religious position in the other recent decisions involving education funding.
Moreland warned against “catastrophizing” the potential impact of a ruling for St. Isidore. Exactly how far the decision reaches will depend on how broadly the court rules and whether a state’s charter school law is similar to Oklahoma’s.
“A lot of this will depend on the particularities of each state’s charter school mechanism,” he said.
“The more it looks like a traditional public school, that makes it look more like a government school,” Moreland said. “But of course, part of the political impetus behind charter schools was to provide a measure of choice … that wasn’t afforded by the traditional public-school models.”
What is possible, some experts fear, is that state lawmakers would change their charter laws to make the schools look more like traditional public schools. And that, they say, could undermine a central purpose of the schools: Freedom from too much state control.
“Charter schools across the board will face a crisis of identity,” the National Alliance for Public Charter Schools told the Supreme Court as it attempted to frame the effect of a win for St. Isidore. “Unable or unwilling to sponsor private charter schools, some states may decide to place charter schools under the type of uniform, top-down oversight that stifled public school innovation in the first place.”
A ‘test’ case?
Robert Franklin, the former chairman of the state board that reviewed the St. Isidore application, says he felt like a pawn in a much bigger effort to bring a test case before the nation’s highest court.
The church could have created a virtual school with its own resources, Franklin said, avoiding the bureaucracy involved with attempting to access taxpayer money. Instead, he said, the school took the hard route.
“It just seemed really unnecessary,” Franklin told CNN. “A march toward an agenda from a national perspective.”
Advocates involved with creating the school have denied they were motivated by setting a precedent with nationwide impact.
But the school’s journey to approval was a winding one. Oklahoma Gov. Kevin Stitt and the state’s former attorney general, John O’Connor, both Republicans, supported the application. When Oklahoma Attorney General Gentner Drummond took office in 2023, he withdrew an opinion from O’Connor supporting the school and ultimately sued the board to try to stop its approval.
Drummond has argued that allowing the Catholic Church to receive taxpayer dollars clears the way for other religions to do so as well.
“I for one do not want my tax dollars funding the teaching of radical Sharia law or the blasphemous tenets of the Church of Satan,” Drummond said last year.
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