The recent deadlock in Oklahoma Statewide Charter School Board v. Drummond is a significant moment in the country’s long-running debate over the separation of church and state. In a brief, one-line per curiam order, the United States Supreme Court left in place a ruling from the Oklahoma Supreme Court that blocks taxpayer funding for St. Isidore of Seville Catholic Virtual School. On its surface, the decision seems unremarkable, offering no detailed opinion or reasoning. Yet behind that short sentence lies a constitutional struggle that cuts to the heart of America’s First Amendment traditions, with profound implications for the future of religious education and public funding.
The Oklahoma Supreme Court’s earlier decision had been clear and emphatic. It ruled that St. Isidore, as a charter school, was a state actor by design. Charter schools in Oklahoma operate under state authorization, receive public funds, and are subject to state oversight. These characteristics render them instruments of the government rather than independent private entities. Allowing such an institution to operate under the principles of Catholic doctrine while receiving taxpayer dollars would, the Court held, violate not only the Oklahoma Constitution but also the Establishment Clause of the First Amendment. The federal Establishment Clause prohibits government actions that endorse or promote religion, a safeguard intended to protect religious liberty by keeping government and religious institutions in separate spheres.
When the case ascended to the nation’s highest Court, it became a collision of two constitutional pillars: the Free Exercise Clause and the Establishment Clause. Supporters of St. Isidore argued that excluding religious schools from a public charter program based on their religious identity constituted unconstitutional discrimination. They leaned on recent Supreme Court decisions in Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin, all of which expanded government support for religious institutions in different contexts. In each of those cases, the Court struck down policies that excluded religious entities from public benefits programs solely because of their spiritual status.
But critics of St. Isidore’s charter application saw a crucial distinction. Unlike the private schools involved in earlier cases, charter schools are publicly funded entities that serve the general public under state governance. To allow such a school to provide religious instruction with state money, they argued, would cross a constitutional line, effectively making the government an active participant in religious indoctrination. This, they warned, was not a case of neutral funding flowing to a religious institution by private choice but a direct state sponsorship of religious education.
The tension came to a head during oral arguments in April. The ideological divide among the justices was unmistakable. Conservative members of the Court expressed skepticism toward policies they viewed as discriminatory against religious institutions. Justice Brett Kavanaugh, in particular, voiced concern that the state’s refusal to approve St. Isidore treated religious schools as second-class citizens. His questions suggested a belief that denying access to public programs solely based on religious affiliation undermines the promise of equal treatment under the law.
Liberal justices, however, pushed back with urgency. Justice Sonia Sotomayor warned that allowing state-funded religious charter schools would dismantle the barrier between church and state that the Establishment Clause was designed to protect. Justice Ketanji Brown Jackson raised the broader policy consequences, questioning whether a religious charter school would gain a privileged status unavailable to secular applicants. She pointed out that public money tied to state educational programs should never compel students to participate in religious education, especially in communities where school choice options are limited.
Chief Justice John Roberts, often a pivotal swing vote in recent religious liberty cases, remained conspicuously silent throughout the arguments. Yet his vote, counted with the justices opposing St. Isidore, contributed to the evenly split decision. Justice Amy Coney Barrett recused herself, likely due to her past affiliation with Notre Dame Law School’s religious liberty clinic, which had professional ties to the case’s petitioners. Without her participation, the Court deadlocked at four to four.
The consequences of that deadlock are immediate but limited. The Oklahoma Supreme Court’s decision stands, meaning St. Isidore cannot open as a publicly funded Catholic charter school. The ruling also sends a powerful, albeit temporary, signal that public charter schools must remain secular entities. Yet the Supreme Court’s failure to produce a full opinion leaves the broader constitutional question unresolved. No binding national precedent has been set. Other states, emboldened or curious, may still attempt to authorize religious charter schools, setting the stage for future litigation and underscoring the ongoing legal uncertainty.
This ambiguity underscores a growing instability in the Court’s approach to religion and public education. Recent decisions, notably Carson v. Makin, have steadily expanded the rights of religious schools to participate in publicly funded programs. Yet those cases dealt with private schools, where parents exercise individual choice in directing educational funding. Charter schools are different by design. They are part of the public education system, created to serve all students without regard to religious litmus tests or doctrinal requirements. Redefining that boundary by allowing religious charter schools would fundamentally alter the legal understanding of public education in the United States.
Justice Sotomayor articulated that risk with clarity during oral arguments. If the government were to begin directly paying religious educators to teach faith-based doctrine, she warned, it would trigger a direct violation of the First Amendment’s prohibition on the government establishment of religion. Such a move would not only erode constitutional principles but also undermine the rule of law. Still, it could also jeopardize educational equity, forcing non-religious and religious minority students into schools that promote specific theological worldviews with public funds.
Oklahoma Attorney General Gentner Drummond echoed those concerns after the decision. He cautioned that opening the door to religious charter schools would invite a wave of publicly funded institutions promoting not just mainstream faiths but potentially more extreme or fringe ideologies. That, he argued, would undermine both religious neutrality and educational fairness, highlighting the potential risks involved in this issue.
For now, the nation’s charter school system remains secular by default, but the constitutional fault lines are widening. With Justice Barrett likely to rejoin future cases, the Court may soon revisit the issue. Advocates for church-state separation should take little comfort in this reprieve. The question is not if the Court will again confront the religious charter school issue, but when. As the legal and political landscape continues to shift, the future of publicly funded education and the wall dividing church and state remains precariously uncertain.
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