S6, Ep. 14: The blockbuster SCOTUS case over religious charter schools

The most consequential church-state case of this Supreme Court term involves whether the government could – or even must – fund religious charter schools. Amanda and Holly examine key moments in the oral arguments from Oklahoma Statewide Charter School Board, et al. v. Drummond, playing clips from the courtroom and looking at how the justices may apply recent precedent to shape future law. As BJC noted in the brief we filed, if the government funds religious charter schools, it will drag our government deeper into questions it is unfit to answer on matters of doctrine and church composition. That’s not government neutrality toward religion – that’s religious preference repackaged as educational choice.

SHOW NOTES
Segment 1 (starting at 01:53): Developments since our previous show

Amanda and Holly talked about the Catholic Charities/Wisconsin case in episode 12: Back to SCOTUS: Regular business in disturbing times

We released our episode with Melissa Rogers to coincide with the first 100 days of the Trump administration. It is episode 13 of season 6: Active citizenship: A conversation with Melissa Rogers about promoting religious freedom and the common good

President Donald Trump issued a proclamation on the National Day of Prayer and he signed an executive order on the same day establishing the Religious Liberty Commission. 

The American Bar Association has a website page dedicated to National Law Day You can click this link to read President Donald Trump’s proclamation on “Loyalty Day and Law Day.”

The Respecting Religion podcast won a 2025 “Best in Class” award from the Religion Communicators Council’s DeRose-Hinkhouse Awards for our episode titled: “But … is it Christian nationalism?” from season 5.

 

Segment 2 (starting at 09:51): Oral arguments in Oklahoma Statewide Charter School Board, et al. v. Drummond

Holly mentioned this article from The Washington Post by Justin Jouvenal and Laura Meckler that provides an overview of the case: How religious public schools went from a long shot to the Supreme Court

Holly and Amanda discussed these cases as they worked their way through the courts in episode 16 of season 5: The trouble with *religious* charter schools

BJC filed an amicus brief in Oklahoma v. Drummond, along with other Christian organizations as well as Jewish, Muslim and interfaith groups. Click here to read our brief.

We played four clips in this segment from the oral arguments in Oklahoma v. Drummond. You can visit the Supreme Court’s website for a transcript of the arguments and an audio recording of the arguments. 

• Clip #1: Justice Ketanji Brown Jackson & Solicitor General John Sauer
• Clip #2: Chief Justice John Roberts 
• Clip #3: Justice Ketanji Brown Jackson 
• Clip #4: Justice Elena Kagan & Michael McGinley

Amanda and Holly mentioned three decisions authored by Chief Justice John Roberts that developed a new way of understanding the Free Exercise Clause. They are: 

• Trinity Lutheran v. Comer (2017)
• Espinoza v. Montana Dept. of Revenue (2020)
• Carson v. Makin (2022)

Holly’s 2017 column on the Trinity Lutheran decision is titled “Decidedly narrow, deeply troubling.”

 

Segment 3 (starting 37:12): What do we expect?

We played one clip from the oral argument in this segment: The opening statement of Greg Garre, who argued the case for the attorney general of Oklahoma.

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Transcript: Season 6, Episode 14: The blockbuster SCOTUS case over religious charter schools (some parts of this transcript have been edited for clarity)

 

AMANDA: Hi, Respecting Religion listeners. We wanted to take a moment off the top of today’s show to honor the recent papal election for the Catholic Church. As we recorded this show on May 8, we saw the white smoke emanate from the Vatican, and later that day, we learned that Cardinal Robert Francis Prevost was named the new Bishop of Rome, taking the name Pope Leo XIV.

Born in Chicago, he grew up in the United States and spent considerable years ministering in Peru, and now he assumes religious leadership of Catholics spanning continents, cultures, and political systems.

We also saw some troubling response from political leaders in our country, celebrating the moment as a national triumph for the United States. But Christianity is a global religion, grounded in humility, compassion, and universal dignity, beliefs that stand in direct contrast to nationalism which seeks to elevate one nation or identity above others.

We just wanted to celebrate the significance of this moment with our Catholic siblings before we begin today’s show. Pope Leo XIV will be formally installed as the new pontiff on May 18.

 

[music]

 

HOLLY: I think it’s not only one of the most important cases this term but recent terms, because it fundamentally could change expectations about the relationship between institutions of religion and government in our most prized context of public schools.

Segment 1: Developments since our previous show (starting at 01:53)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re returning to the popular topic on this podcast of oral arguments at the U.S. Supreme Court. There are two church-state cases that came before the Court in recent weeks, and today we’re going to talk about the case out of Oklahoma. That case concerns the constitutionality of what could be the nation’s first religious charter school.

In a coming episode, we’ll also review a case out of Maryland that addresses claims of parents to opt out of public school curriculum they find in conflict with their religious beliefs.

AMANDA: Yes, it’s safe to say the religion docket is active again this term, and that provides lots for us to talk about here on Respecting Religion. We talked about the arguments in the other church-state case this term, the Catholic Charities/Wisconsin case, back in episode 12 of this season, and we are having our conversation and recording on May 8.

So in other religion news, world news, the conclave started yesterday, and breaking news, as we’ve been sitting here, we just got the alert that white smoke is seen above the Vatican, so that means that the cardinals gathered there have selected the next pope. As we record, we don’t know who that is, but this is — of course — huge news in the world of religion, and something that came very quickly.

HOLLY: Yeah. There’s a lot going on, and we are glad to be recording today in the midst of a very busy spring. We know this is a busy time for everyone. But still, as we record and kind of placing our conversation in context, we are just past the first 100 days of the Trump administration.

AMANDA: That’s right. And we marked that occasion here on Respecting Religion by having a special release of a conversation that we had with Melissa Rogers on April 30, which was more or less the hundredth day of the Trump administration. I saw some people marking it on April 29, some people marking it on April 30.

But that seemed a good time for us to sit down with our friend Melissa to talk about how we’re seeing religion and the law and public life at this really critical time for American democracy, and [we were] grateful that Melissa had some really good advice on some specific actions that we could take.

Then the very next day was May 1. The very first Thursday in May is marked as the National Day of Prayer, and President Trump took that opportunity to issue another executive action, establishing a Religious Liberty Commission.

We weren’t surprised that he was going to do something in the area of religion that day, because that seems to be his custom, and we read that and really took a lot of issue, I think, Holly, with how President Trump seems to understand and interpret religious liberty. There was a lot of rhetoric in that order but [I’m] really concerned about what that commission may take on as its responsibility and how it might interpret religious freedom in the days to come.

HOLLY: Yes. We noted that action. It was actually one of five Eos — executive orders, or proclamations on that day, National Day of Prayer. There’s quite a bit of continuing action, a lot of it symbolic, but we know that it also can be fertile ground for some real mischief, too, so we were interested in what this commission — what it was intended for, who’s going to be on it, how it’s set up.

And, again, you know, all presidents recognize a National Day of Prayer. Many of them put proclamations for these special days, but we always follow the news and look for any developments there. And we see this president putting his particular twist on them.

You know, some of this is just normal proclamation, but some of it includes a little personal grievance, and some of it kind of moves in a different direction. And particularly, Amanda, as you said, we’ll be listening about how that is on matters of religious freedom.

I was particularly interested, as I was reviewing all of this on May 1, the day after the hundred days, which — the hundred days on April 30, which is the day of the oral argument that we’re going to talk about — that it was also Law Day. And as we’ve noted before, the rule of law and the relationship between lawyers and the rule of law in this present are something that is very concerning right now.

And on National Law Day, I got to learn a little bit more about that tradition, and then to see how President Trump addressed it, and I think we should put that in our show notes, just for anyone who’s interested. Actually, the tradition comes from the Eisenhower era, and it started with a proclamation that, “It is fitting that the people of the nation should remember with pride and vigilantly guard the great heritage of liberty, justice, and equality under law, which our forefathers bequeathed to us.”

So, you know, that’s something that makes you feel quite patriotic and nice to know that presidents through the decades have marked that day. And President Trump did as well, but he also added that, when he took office, he was putting an end to, quote, “erosion of the American justice system.”

So we see here a kind of antagonistic relationship with this administration and how he sees the rule of law. And, you know, again, we — among others — are looking to see them stand by this tradition of upholding the importance of rule of law in our country.

AMANDA: Yeah. It’s a funhouse mirror with this president, I think, and his conception of the legal system, and, you know, just a few days after that, headlines grabbed again when asked if he thought that due process rights should apply to American citizens and to people who aren’t American citizens, he didn’t know how to answer that question.

So, you know, talk about a foundation of the American — not just the American legal system but American democracy, the idea that you cannot just have your liberty taken away without due process. For the leader of this country to not know if he agrees with that statement or not is incredibly alarming.

And so I was very pleased to see a lot of attorneys retaking their oath of office on May 1, that the legal profession is really, I think, leaning in to this critical moment and showing their professional leadership, that we need this entire system to ensure everyone’s liberty in the country. And so glad to see the private sector — right? — the people who are serving as attorneys, as well as the judiciary, continuing to defend the importance of law in this moment.

And in the midst of all these really important, huge issues in the life of the country and the world, we also got some good news for the podcast, Holly.

HOLLY: We did.

AMANDA: This is the award-winning Respecting Religion podcast, and we won another award, so our podcast was named “Best in Class” from the Religion Communicators Council, and in particular, it was for our show reviewing different situations and asking, “But … is it Christian nationalism?”

So if you’re interested, you can go back and listen to season 5, episode 21, and really grateful for all of the work that goes into this podcast and particularly our incredible producer, Cherilyn Crowe Guy.

 

 

Segment 2: Oral arguments in Oklahoma Statewide Charter School Board, et al. v. Drummond (starting at 09:51)

AMANDA: So today, Holly, we are going to discuss oral arguments in the case Oklahoma Statewide Charter School Board v. Drummond. The U.S. Supreme Court heard oral argument in this case on April 30. And, Holly, you were there in the courtroom to hear these oral arguments live.

HOLLY: I was, and we’ve reported on this case somewhat before. This is really a groundbreaking — it could be a groundbreaking case. It was originally brought by the attorney general of Oklahoma, Attorney General Drummond, and so the case is often referred to as the Drummond case. It was consolidated with another case related that was brought by St. Isidore Catholic charter school, a proposed charter school.

These two cases together address the very important question of whether or not the Constitution allows and as the petitioners in this case — those who brought it to the Supreme Court — would argue, requires the funding of this particular school as part of the Oklahoma charter school system.

So for our listeners, just very briefly, charter schools are kind of innovative public schools, fully funded by state tax dollars, as are all public schools. The charter school movement started decades ago as a different and sort of an experimental approach to expanding different ways to do public education. And this case really is a challenge to that understanding of charter schools as public schools.

I want to recommend a really good article in The Washington Post that kind of set forth the background of this case. It’s an April 28 article. The online headline is, “How religious public schools went from a long shot to the Supreme Court,” and it’s by Justin Jouvenal and Laura Meckler.

And I say that because we know, Amanda, that the push for public funding of religious institutions and particularly for religious education is one that has gone on for a long time, and we’ve seen changes in the law and sort of easing of restrictions on government funding that makes its way to religious institutions in various ways.

And BJC’s been involved in these cases, because we stand strongly on the side of our Establishment Clause history that we believe protects religion and religious freedom by keeping the institutions of church and state at some distance — not that they never interact, not that there’s no way that they can ever work together — but some distance in order for religion to be freely exercised and for neither the institutions of religion or the government to control the other.

AMANDA: Yeah. And we did talk about this particular case or these cases, as you noted, that have been consolidated, as they were working their way through the system, back in season 5, episode 16. And it’s important to note, yes, we’ve been involved in saying, no, the government should not fund religion and should not fund — therefore — religious schools. Most of those arguments have come in the context of public school vouchers. Right?

So this is a decidedly different and, indeed, even more consequential case, when we’re actually talking about the specter of religious charter schools, which are, in essence, religious public schools. Those two words do not go together, “religious” and “public schools” in a system that is built on the foundation of an understanding of the separation of the institutions of religion and government.

And so this is in many ways a case like — we have never seen anything like this before, even though we have been a repeat player in explaining these principles to various courts and particularly the U.S. Supreme Court.

HOLLY: That’s right. And so we filed a brief in this case on the side of the attorney general of Oklahoma, Drummond. I mean, remember, this is — it’s really an internal Oklahoma fight in some ways, in that you have a sitting attorney general, challenging the action of a state board in concert with a Catholic school — these two together proposing this religious charter school.

And Attorney General Drummond was successful at the Oklahoma Supreme Court. The Oklahoma Supreme Court found that this was in violation of Oklahoma law, statutory law, Oklahoma constitutional law, and the federal Constitution. So the Supreme Court is being asked to reverse and to change the ruling of the state supreme court and force Oklahoma to fund this school.

So, as you note, Amanda, there’s really a lot at stake here. And so we filed this brief, working very closely with our friend, the esteemed Professor Bob Tuttle of George Washington University Law School, and a very talented team at Davis Wright Tremaine. And it was a brief that was joined by Baptist, Jewish, Muslim, and interfaith groups, and we so appreciated the opportunity to file this brief together, to work together as religious entities, very much invested in our constitutional tradition of No Establishment.

Our brief really focused on the principles that are throughout Supreme Court jurisprudence, that showed that the Establishment Clause was intended to avoid this kind of entanglement and fusion of the institutions of church and state because of so many problems that the founding era knew that could harm religion and could harm government.

Part of the importance of our brief, I believe, is to note that history that is so important and has been good for religion and for religious liberty, including religious entities from all different perspectives.

As we’ve noted before, this Court is now focused on interpreting the Establishment Clause under what it calls a history and tradition test, and so our brief focuses on how historically and continuing in the tradition throughout the whole development of public schools there’s been an understanding that the schools should serve all and that religion must be treated differently, that schools cannot sponsor religious exercises, cannot coerce in matters of faith. So we saw this case as really a direct attack and threat on that assumption about how religious liberty works in the public school setting.

And given that this was the first case where they could really address how this new test would play out, I really wanted to be there and see what it felt like, to see what other advocates showed up, and to see how the justices reacted in real time to what I knew would be really excellent advocacy on both sides.

AMANDA: And I was not in the courtroom, Holly. I was able to read the transcript and see what happened there. What struck me was, okay, they’ve said, When we look at Establishment Clause, we care about history and tradition, particularly Justice Gorsuch who wrote the decision in the Kennedy v. Bremerton case that put out that new way to think about Establishment Clause cases. So it was striking to me that there was very little mention of history in this case at all, and in fact, very little mention of the Establishment Clause.

HOLLY: Yeah. That’s true. That’s true. Having looked through the amicus briefs on both sides, there are briefs that address history and that make competing arguments. Of course, the one that I found had the most legal persuasion was heavily influenced by Professor Steven Green, who’s one of the nation’s leading historians on the religion clauses.

So the Court has in front of it good information about the history of the Establishment Clause and what it meant, and the history of the common schools, as they were first called, and how they developed and what is expected from them. There wasn’t a lot of talk about that in the courtroom.

AMANDA: And at one point, Justice Jackson in particular made it so clear that the advocates were — especially the advocates for the petitioners — were completely avoiding the Establishment Clause. Let’s play a clip here.

JUSTICE KETANJI BROWN JACKSON: So I’m just trying to understand your Establishment Clause “nothing to see here” position. St. Isidore’s is pretty clear about its mission. Its members, as you’ve said, are private individuals, an archbishop and a bishop. It would require the students to, quote, “spend time in religious instruction and activities, and permit state spending in direct support of religious curriculum and activities.”

 

So are you saying that the religious charter schools’ use of public funds to support proselytization, which the school says it intends to do, is not an Establishment Clause problem, like we wouldn’t have to look at like where the funding is going? Even if the school says, Yes, we’re getting money from the state, and we are turning around and buying Bibles and instructing the students, and, you know, no Establishment Clause problem.

 

SOLICITOR GENERAL JOHN SAUER: The principle of genuine independent private choice that goes from Zelman to Carson would address that directly. Here the parents are choosing with open eyes to take their kid to the religious charter school. They’re understanding we may be subject to proselytizing —

 

JUSTICE JACKSON: Isn’t that — so you’re saying the Establishment Clause only — only does work in a situation in which a person is being forced to engage in religious activities. If there’s a choice somehow —

 

SOLICITOR GENERAL SAUER: No. I’m saying where state funding is going to religious schools on an even footing through where public and private schools can apply for the funding, as you see here, and in addition to that, the decision whether or not to go to the religious school or the nonreligious school lies in the hands of the parents, that is genuine and independent private choice, which I don’t think is disputed in this case, and therefore, that would not violate the Establishment Clause.

HOLLY: Amanda, I agree. That part of the argument really does show how important the Establishment Clause argument is here, and yet how little attention it’s getting. And it raises, you know, a couple of things that came up throughout the two-and-a-half hours of oral argument, primarily whether or not St. Isidore is a public versus private entity.

They say that they are a private entity and that charter schools are private, so if you’re going to fund private entities, you’ve got to fund them also. But, of course, the state says, No, we set up a charter school program, and the charter schools are public schools. And there’s a lot of conversation about what makes an entity public or private.

And then we also heard in that clip this desire to try to put St. Isidore in the framework of a school choice program, a typical voucher program, that we know have been around since the early 2000s. That was another reason I wanted to be in the courtroom — is because I was in the courtroom the day the Court heard the Zelman case, and that was a case that first held that a voucher program, where funding could end up in supporting private religious education, could be constitutional under the Establishment Clause.

Of course, there was no argument that it was required, but the Court held that it could be constitutional under the Establishment Clause that a state sets up a program where money goes to a parent. They have a variety of choices. They could use the money at a private school, including a private religious school. But I could hear in Justice Jackson’s voice and see in her face the incredulity that they were arguing that it made no difference for there to be direct funding of religious activity, experience-shaping formation, which is what was proposed in this case.

AMANDA: Yeah. And St. Isidore’s claim that they are just a private school and not part of the public system both, I think, really stretches logical sense here, but also was a very deliberate choice to try to get them out of the Establishment Clause framework with this Court in particular and into a Free Exercise framework.

And that’s because this Court, beginning with a case in 2017 and then with two cases that followed, all three cases written by Chief Justice Roberts, has developed this new way of understanding the Free Exercise Clause, that when there is a program that is open to exclude a religious applicant — and in this case, the religious applicant would be St. Isidore’s charter school, virtual charter school — to exclude the religious applicant amounts to a kind of religious discrimination.

And, Holly, for many, many seasons, we have talked about — what I’ve come to call these cases together, the unholy trinity of cases — this framework and way of looking at the Free Exercise Clause and, in fact, looking at government funding of religion altogether, completely turns on its head foundational constitutional principles that got us to the idea of No Establishment of religion.

HOLLY: And it’s interesting. I think Justice Jackson, I would say, is friendly toward these religion arguments that you can’t treat people differently just because of their religion. But she is showing that there’s something fundamentally different here, when you’re talking about the state funding religious formation, instruction, indoctrination.

And we’ve seen that come up in various cases in the past, and you can sort of hear the frustration in her voice and, you know, throughout this argument, the intensity of all of the justices in trying to debate these ideas, where there is some agreement, I think, across the Court that religion has to be treated fairly and equally in some instances, and that people are equal citizens without regard to religion, and at the same time, that the No Establishment Clause means something, that the government itself cannot be involved in advancing and promoting religion, and this ban on direct funding of religious exercise is something that goes back to the founding era and that we’ve seen just hanging on by a thread. And in this case, there’s really a lot of pulling on that thread.

AMANDA: Yeah. And the thread — I’ll keep with your analogy here. You know, the thread, it started to unravel with this case of Trinity Lutheran, and I’ll just say it. We told you so. Right? In fact, you told them so, Holly, in 2017 when you wrote a column about Trinity Lutheran titled, “Decidedly narrow, deeply troubling.”

And I want to play a very short clip here of Chief Justice Roberts, asking the advocate for St. Isidore School about this line of cases that all seemed pretty narrow. Why would they apply? Why should that principle apply to this much broader context? We’ll hear from the chief here.

CHIEF JUSTICE JOHN ROBERTS: Thank you, Counsel. You rely heavily in your brief on a number of cases: Trinity Lutheran, Espinoza, Carson. Those involved fairly discrete state involvement. In Trinity Lutheran, they’re going to pave — or, you know, put wood chips on the playground. In Espinoza, it was a tuition credit. In Carson, again, tax credits. I mean, this does strike me as a much more comprehensive involvement, and I wonder what case you think supports the position with respect to that level of involvement.

HOLLY: Well, that question from Chief Justice Roberts came pretty early in the argument, and I appreciated it, because it did show the different magnitude of this case. I think the chief was a little bit rusty on his facts, but that’s okay. He doesn’t do church-state law every day like we do, with the old Trinity Lutheran rubber tire playground case and then the tax credits, and then, you know, very unusual situation in Maine where they outsource their public schools in certain rural areas to private schools.

But it is true, those three cases really set this line of thinking that religion had to be treated the same as all other things, which is really hard to get your head around when you see how religion is treated differently in the First Amendment. It’s given special treatment, and the requirement of No Establishment has to mean something. In our view, it means that the government cannot be directly involved in sponsoring and promoting and paying for religion.

So I was glad to hear the chief justice pose that question early on. And you could see throughout the oral arguments that there was a sense that if the Court decided in favor of the Oklahoma charter school board and St. Isidore, it could have major ramifications for the understanding of the relationship between religious institutions and the government.

AMANDA: And I think Justice Jackson who, as you said, is, — of course, as all the justices are, are working within the framework of these three cases, but I really felt like she was trying to draw a line here that we keep it from having these profound ramifications on public education. And it really gets to, how do you define what the public benefit at issue is — right? — that these cases stand for the principle that when the government offers a public benefit, that they can’t discriminate against religious applicants to that benefit.

Well, how you define what the public benefit is really matters. And I thought at this particular part of the argument, she did a good job of setting up how she saw the public benefit at issue.

JUSTICE JACKSON: And Oklahoma says, Fine; private entities come in, and we provide money and support if you want to establish a secular charter school in order to advance our goal of having that sort of system. Importantly, I think, we’ve said in Carson that they are allowed to do that. Carson says that a state can permissibly choose, quote, “to provide a strictly secular education in its public schools.” And so that appears to be what Oklahoma is trying to do.

 

Now, in this case, St. Isidore doesn’t want to establish a secular school, which is what the public benefit is. Instead, they want to establish a religious school. So as I see it, it’s not being denied a benefit that everyone else gets. It’s being denied a benefit that no one else gets, which is the ability to establish a religious public school.

HOLLY: Two things struck me about that, that comment from Justice Jackson. One is this is not like a typical, small public benefit, like let’s incentivize people to recycle tires and maybe get a grant that helps you improve your playground. This is the public school system of Oklahoma, and every state has a public school system, and they are required to provide this for all. So there’s a misfit in that kind of analogy from my perspective.

And, secondly, I think, again, she’s trying to say that religious education can be very different, and I think Justice Kagan probably did the best job in illustrating that. Let’s play a clip where she is interacting with the advocate. She’s really pressing to see how far their argument goes.

JUSTICE ELENA KAGAN: So suppose a religious school came in and said, in addition to the modifications that you made, we want to make some further modifications with respect to the curricula requirements. I’ll give you a hypothetical, just so we can focus the inquiry.

 

MR. MICHAEL McGINLEY: Sure.

 

JUSTICE KAGAN: Let’s say we’re not in Oklahoma. Let’s say we’re up in New York, and there’s a Hasidic community that has a yeshiva, and it’s a very serious yeshiva, and what that means is that almost all the instruction has to do with study in Talmud and other religious texts. Very little of it has to do with secular subjects. Almost none of the instruction is in English. Almost all of it is in Yiddish or in various like ancient Hebrew, Aramaic kind of languages.

 

And that’s the charter school that this Hasidic community wanted to qualify for. Does New York have to say, yes, even those that curriculum is super-different from the curriculum that we provide in our regular public schools? Yes, come join our completely taxpayer-funded charter school program.

 

MR. McGINLEY: So the first thing I would say is that, given the nature of charter school programs, it very well might be that the state wants that or is fine with that, because it provides —

 

JUSTICE KAGAN: Let’s say the state is not fine with that. Let’s say the state thinks, it’s great that you provide that education on your own, and it might be that if we have certain kinds of tuition assistance, you would be included in that. But the state has this same idea, honestly, that Oklahoma has, which is these schools are supposed to be public, and they’re supposed to sort of look like public schools, and this one really doesn’t.

HOLLY: I’m glad we played that clip, because I remember it was quite striking in the courtroom, and it really just shows the distinction between private religious schools and what public schools do that serve people without regard to religion, teaching about religion, open to all, and the kind of infusion of religion that you see in many private religious schools.

It also illustrates kind of the intensity of this argument about whether this even could be a public institution as charter schools are in Oklahoma. And that’s something that just illustrates what a big change this would be if the Court forces Oklahoma to include St. Isidore as part of its public charter school program.

And it also points to something that underlies all of this, and, Amanda, we talked about this in our brief. And that is to the extent that a private actor, a group says that they are a private entity — whether it’s a yeshiva school or a Catholic school — then has the right to come in and participate in the charter school program by crossing out provisions in the charter school law, provisions that said they must offer a nonsectarian education, it will have huge political ramifications, because all of these charter schools have to go through a process and be approved by a state board.

We thought this was really important in the brief that we filed, in which we noted that in a charter school application context, the government’s going to be in a position of picking and choosing which applications to accept. And we said that the state cannot fund every religious school that seeks a charter.

Every future decision — who gets funded, who gets denied — will drag government deeper into questions it is unfit to answer. What counts as doctrine? What qualifies as a church? Who speaks for a tradition? That is not neutrality. That is religious preference, repackaged as educational choice.

And that’s how we see this. You know, this is a hard-fought battle, with the justices deeply engaged, and there are very high stakes, not just for Oklahoma but for public schools across our country. You know, it was stated many times that there are 47 states and a federal statute that deal with charter schools, and all define them as public schools.

AMANDA: Yeah. And let’s get real. Right? In most of these communities, there is a Christian majority, and there is a Christian preference. And Justice Kagan later in the argument makes this point herself, that says that minority religions are not likely to be selected.

And so it will end up, you know, because there aren’t unlimited charters that can be given out, and it will end up with government bodies picking and choosing among religions — which back to that history that this Court claims to care about, was one of the reasons that the Establishment Clause was put in in the first place.

So the implications, I think, are pretty huge in this case. This is, I believe — not just because it’s in the area of law that we work in and care about, Holly — but this is one of the most important cases that the justices will hear and decide this term.

HOLLY: I agree. I think it’s not only one of the most important cases this term but of recent terms, because it fundamentally could change expectations about the relationship between the institutions of religion and government in our most prized context of public schools.

Public schools are where we have shown most devotion and clarity about what religious freedom means. Schools don’t sponsor religion. They don’t force kids to pray. They don’t make kids feel like outsiders by advancing particular religions but often provide a place where kids learn about other religions and really are prepared to participate in our democracy.

So I think it’s a very important case. I am hopeful that the Court, in whatever it decides, does not do unnecessary damage to those principles of religious freedom that have served us so well.

 

 

Segment 3: What do we expect? (starting at 37:12)

HOLLY: I think we should note how Greg Garre, the advocate for Attorney General Drummond, presented this case and really underscored the magnitude of what’s at stake here.

MR. GREG GARRE: First, charter schools are public schools. They bear all the hallmarks of the criteria this Court recognized in Carson, are established just like the Court said in Carson states could to expand educational opportunities within the public school system, and have been recognized as and indeed are required to be public schools by the Congress of the United States and the legislatures of 47 states.

 

Second, teaching religion in — as truth in public schools is not allowed. St. Isidore has made clear that that’s exactly what it wants to do in infusing its school day with the teachings of Jesus Christ. Oklahoma respects and promotes through vouchers and other means the abilities of families to secure such an education in a private school, but this Court has held in a series of landmark precedents, not challenged by anyone here, that the Establishment Clause bars such devotional teaching in public schools.

 

And, third, petitioners are not seeking access to Oklahoma’s program on equals terms. They seek a special status, the right to establish a religious charter school, plus an exemption from the nondiscrimination requirements that apply to every other charter school and that distinguish public schools from private schools. The charter school movement is one of the modern-day success stories of public education.

 

Presidents, governors, and legislators from across the country have recognized that charter schools have improved educational opportunities and outcomes for millions of Americans, especially those from disadvantaged backgrounds within the public school system.

 

A ruling for petitioners would not only lead to the creation of the nation’s first religious public school. It would render unconstitutional, as my friend from the solicitor general acknowledged, the federal charter school program and immediately the laws of 47 states across this country, and it would result in the astounding rule that states not only may but must fund and create public religious schools, an astounding reversal from this Court’s time-honored precedents.

HOLLY: I think it’s good to play that lengthy piece from the attorney general’s side because it does show how much is at stake here and that there are a lot of people who care about this from different perspectives. As we’ve seen, there are political differences within the conservative movement. There’s a lot at stake for the charter school movement.

And there’s a lot of debate about what Chief Justice Roberts said and what he meant in the trilogy of cases, when he said that a state does not have to fund private institutions, but if it has a program that involves private institutions, it can’t keep out private religious institutions just because they are religious.

We’ll see if he meant what he says, and we’ll see if the Court recognizes that a public school system is quite different from a small, private contractor involved in a discrete government program.

AMANDA: And we’ll see pretty soon, because, you know, this is one of the last cases to be heard by this Court this term. We generally expect all decisions to be released by the end of June. Something that’s a little different about this case is one of the justices, Amy Coney Barrett, has recused herself from the process and was not at oral argument and will not participate in the decision.

So that means that eight justices will decide this case, and because the respondent, the attorney general of Oklahoma, the state of Oklahoma prevailed below, in order for that to remain good law, they only need four votes. If there are five votes for the charter school board and St. Isidore in this case, then they will win, but four votes wins for the attorney general.

And so, just kind of counting heads, it seemed like, you know, who are typically considered the more liberal justices, they all seemed very skeptical of the systems, and I would say that Justices Thomas, Alito, Kavanaugh and Gorsuch all seemed pretty open to the school board side, so that kind of leaves the chief justice as potentially the swing vote in this case.

Now, as noted earlier, he wrote all three of those cases that the advocates for the charter school are relying upon, so how he decides and determines this case will, I think, decide this case and see what the ramifications are, so we’ll watch that very closely.

Just one kind of et cetera point that I wanted to make. I was really surprised when Greg Garre, who was the advocate for the state of Oklahoma, when he was asked, I think it was by Justice Thomas, like, well, Why does the other side — why does the state charter board, why do they have such a different view of the Establishment Clause here? And he said that they “went rogue.” That’s the quote.

And I thought this was like this remarkable moment that the level of extremism on this particular board being acknowledged and publicly commented on by a Republican government — right? — that this isn’t like a partisan issue. This is almost an intra-party issue between a more mainstream version of the Republican party and, as he termed it, a rogue version of the Republican party. So that was a very interesting political moment to me in the argument.

HOLLY: I think it definitely illustrates the intensity of what’s at stake here. It is a hard-fought battle, and as we’ve discussed, will have important ramifications.

And that brings us to the close of this episode of Respecting Religion. Thank you for joining us. For more information on what we discussed, visit our website at RespectingReligion.org, for show notes and a transcript of this program.

AMANDA: Respecting Religion is produced by Cherilyn Guy and edited by Nasim Bowlus. Learn more about our work at BJC defending faith freedom for all by visiting our website at BJConline.org.

HOLLY: We’d love to hear from you. You can send both of us an email by writing to [email protected].

AMANDA: We’re also on social media @BJContheHill, and you can follow me on X, Bluesky, and Threads @AmandaTylerBJC.

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AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us next time for new a conversation Respecting Religion.