On a 4-4 vote, the U.S. Supreme Court leaves ban on religious charter schools in Oklahoma in place
What was expected to be a major Supreme Court decision — which could have had dire consequences when it comes to government funding of religion — thankfully fizzled in a 1-page, unsigned opinion this week that ended a recent push for a religious charter school.
On Thursday, the U.S. Supreme Court essentially announced that it was evenly divided on the question of whether Oklahoma had to accept St. Isidore, a Catholic charter school applicant, to its charter school program. It would have been the first religious charter school in the nation, which would have been a threat to religious freedom for all.
The Oklahoma Supreme Court already decided that publicly funded religious charter schools are unconstitutional under both the Oklahoma and United States constitutions, and this case was challenging that decision. Because Justice Amy Coney Barrett recused herself from the case, there were only eight justices voting in this decision. Five votes were needed to overturn the Oklahoma Supreme Court, but just four votes meant its ruling would remain in place. So, in issuing the 4-4 deadlock, the Court affirms the Oklahoma Supreme Court ruling, and we will not have a religious charter school.
BJC General Counsel Holly Hollman welcomed the deadlock, noting the consequences for our nation’s public schools if the case had gone the other way:
The Supreme Court’s deadlock means an important principle remains intact: the government cannot operate a religious school, nor can it directly sponsor, promote, or pay for religious education. …
The Oklahoma decision rightly affirmed that charter schools are public schools. And public schools are where we’ve shown the greatest clarity about religious freedom: they don’t conduct religious exercises, compel prayer, or make students feel excluded based on their beliefs. Instead, they reflect the true promise of pluralism — where students can learn about diverse faiths and prepare to participate in a shared democracy.
This outcome helps preserve that promise. And it ensures that our public institutions remain open to all, not captured by any one religious mission.
Oral arguments in April reflected a sharp split between justices who expressed concern about the implications of allowing public charter schools to teach religion and those who insist that the exclusion of religious schools from charter school programs discriminates against religion. Much of the discussion centered on whether a charter school should be considered a public school.
In a brief filed with the Court, BJC argued that our nation’s history and tradition of protecting religious liberty for all has long required that the government refrain from engaging in or directly funding religious education. Reversing course now, BJC explained, would “forsake a foundational constitutional commitment.” The brief made it clear: “The state may not directly fund religious instruction. That line has long preserved both faith and freedom. It should be respected here.”
Many of the same questions and disagreements in this case may return to the Court in a future dispute. Advocates for public funding of religious instruction will no doubt continue their push, jeopardizing long-standing critical protections for the institutional separation of church and state in the process.
For now, though, the principled reasoning of the Oklahoma Supreme Court is the law of the land in that state. Here is a key excerpt from their decision:
Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian. …This State’s establishment of a religious charter school violates Oklahoma statutes, the Oklahoma Constitution, and the Establishment Clause… . St. Isidore came into existence through its charter with the State and will function as a component of the State’s public school system. This case turns on the State’s contracted-for religious teachings and activities through a new public charter school, not the State’s exclusion of a religious entity… . The St. Isidore Contract violates state and federal law and is unconstitutional.
For more on this case, listen to a recent episode of BJC’s Respecting Religion podcast in which BJC Executive Director Amanda Tyler and General Counsel Holly Hollman discuss the case and key moments in the Court’s oral arguments.
