WASHINGTON — Hearing a case today that would have major ramifications across the country, U.S. Supreme Court justices spent two hours weighing arguments about whether a proposed Catholic charter school in Oklahoma would violate constitutional parameters regarding public funding and religion.
During about two hours of arguments Wednesday morning, justices peppered attorneys representing Oklahoma Attorney General Gentner Drummond, St. Isidore of Seville Catholic Virtual School and the Statewide Charter School Board with questions about whether charter schools are public schools and if prohibitions against religious charter schools constitute discrimination.
Justice Amy Coney Barrett, a devout Catholic with a history tied to religious freedom initiatives at Notre Dame Law School, recused from the case. The other eight justices seemed split on the topic.
“This case is ultimately about safeguarding religious liberty. Religious liberty means every citizen is free to worship as he or she sees fit. It does not mean the government should back religious indoctrination,” Drummond said in a press release after the hearing. “The justices were clearly engaged. Their questions were robust and meaningful.”
On Tuesday, Drummond spoke with NonDoc about the case. He referenced the two clauses of the First Amendment that concern religion: the establishment clause and the free exercise clause.
“If we, the state, are offering a generally available benefit, and excluding an entity because it’s religious, that’s against the law. And I 100 percent endorse that and embrace that,” Drummond said. “This is not that. Those are state action doctrine cases. This is an establishment clause case — night and day different.”
Drummond did not argue the case himself Wednesday, instead relying on Gregory Garre, a Washington-based attorney who served as solicitor general for the U.S. under President George W. Bush.
During the hearing, Garre answered a barrage of questions from the justices, defending Drummond’s position to Brett Kavanaugh and Samuel Alito while answering friendlier questions from Katanji Brown Jackson, Sonya Sotomayor and Elena Kagan. Chief Justice John Roberts, as well as Justices Clarence Thomas and Neil Gorsuch, were less overt with their questioning.
Charter schools are typically considered public schools but can be run by private management organizations. They are not allowed to charge tuition and receive state funds. Currently, Oklahoma and federal laws require charter schools to be “nonsectarian,” meaning they cannot be religiously affiliated and cannot proselytize.
The case of St. Isidore has pitted Drummond against other elected officials in his own party. Gov. Kevin Stitt attended Wednesday’s hearing to show support for the proposed school, which the Oklahoma Supreme Court ruled in June 2024 violates both state and federal constitutions.
“You cannot discriminate (against) someone just based on their faith, and that’s basically what our state Supreme Court tried to do, and what our attorney general is trying to argue,” Stitt said after the hearing, adding that he feels confident the U.S. Supreme Court will side with St. Isidore.
Drummond, who announced his campaign for governor in January, had a different take.
“The proponents — the governor, superintendent of public education and the petitioners — would have you stand on your left foot, twist your head to the right, squint real hard, look off on the horizon and create an apparition that doesn’t exist unless we change the laws,” Drummond said Tuesday.
Although he seems to be Oklahoma’s lone statewide elected official opposing the school, Drummond said he felt he was defending Oklahoma and federal law.
“I took an oath of office that I take seriously, and I’m a lawyer, therefore I’m informed in the law. It’s not convenient for me to ignore the law,” Drummond said. “Other elected officials, they have exculpatory situations where they can ignore the law.”
In addition to Stitt, SCSB Chairman Brian Shellem attended the hearing, as did the board’s executive director, Rebecca Wilkinson. State Superintendent of Public Instruction Ryan Walters, who has also been vocal in his support of St. Isidore but who has recently broken with Stitt and others over his education policies, was not present.
After the hearing, Shellem and attorney Jason Campbell, who represented the SCSB, spoke to reporters on the steps of the U.S. Supreme Court.
“I thought it went pretty well,” Campbell said. “I thought the court was very receptive to the arguments we were making.”
Campbell argued that Drummond’s opposition to his case was incorrect.
“He’s simply wrong,” Campbell said. “The law is on our side.”
Kavanaugh: ‘Don’t exclude us on account of our religion’
Wednesday’s hearing focused on whether charter schools are public schools and if religious charter schools would violate the free exercise clause of the First Amendment to the Constitution. Drummond’s attorney argued that charter schools are established and controlled by the state, so a religious charter school constitutes a state establishment of religion.
“Teaching religion 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,” Garre said during the hearing.
But attorneys for St. Isidore and the SCSB pushed back on Drummond’s argument, saying charter schools are private organizations and prohibitions against religious charter schools constitute the denial of a benefit to religious organizations solely because they are religious. The argument found a welcome audience with Alito and Kavanaugh.
“All the religious school is saying is, ‘Don’t exclude us on account of our religion,'” Kavanaugh said at one point. “Our cases have made very clear — and I think those are some of the most important cases we’ve had — of saying you can’t treat religious people and religious institutions and religious speech as second-class in the United States. And when you have a program that’s open to all comers except religion, (…) that seems like rank discrimination against religion.”
Alito, in particular, seemed unconvinced that charter schools are public schools.
“The way that you portray these charter schools, I don’t see what the virtue of the charter schools are,” Alito said to Garre. “I thought the whole point of charter schools what was to offer something different from the so-called public schools. And you’ve made it sound like, ‘No, they’re just going to be exactly like the public schools.'”
Jackson, on the other hand, took issue with St. Isidore’s and the SCSB’s argument that the state is denying a “generally available benefit” to an organization solely because it is religious.
“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,” Jackson said.
Roberts, the chief justice, refrained from making an argument with his questions of the attorneys, but he did ask about state involvement with charter schools, apparently in an effort to determine if they truly constitute public schools. Thomas and Gorsuch asked similar questions.
In addition to Campbell, who argued for the SCSB, and Michael McGinley, who argued for St. Isidore, the U.S. solicitor general, John Sauer, also argued in favor of the Catholic charter school in front of the Supreme Court. His involvement in the case prompted derision from some of the justices owing to the fact federal charter school law also requires charter schools to be nonsectarian.
“Let me just ask you one quick last question and make sure that I understand what part of the federal statute you’re giving up today,” Kagan said. “As I understand it, the federal law conditions money on recipients being public schools that are nonsectarian in their programs, admissions policies, employment practices and all other operations. So that’s the part of the federal statute that I’m focused on. And you’re saying today that that is so patently unconstitutional that you will not defend that statute?”
Sauer responded that religious charter schools would need to have a “free exercise exemption” in their operations.
‘They will lose access’: Charter school advocate fears ramifications of St. Isidore victory
As justices prepare to make their decision on the case, numerous state and national entities have taken an interest in the case. Dozens of amicus briefs were filed with the Supreme Court on both sides of the issue.
Stitt, Walters, U.S. Sen. James Lankford (R-Oklahoma), former Attorney General John O’Connor and former Gov. Frank Keating all filed briefs with the court supporting St. Isidore.
In addition to navigating such a landscape as attorney general, Drummond acknowledged he must also navigate the issue as a candidate for governor.
“I’ve taken a lot of steps that if I were licking my finger and holding it to the wind, I wouldn’t have done it. Richard Glossip, no way would I have done it politically. Taking this on politically? No way,” Drummond said. “The problem is, Oklahomans elected an attorney general who’s a lawyer, who takes an oath, who honors his oath, right? So if Oklahomans are disappointed, then they should only elect people that will not uphold their own law.”
Drummond also discussed potential outcomes if the Supreme Court rules in favor of St. Isidore.
“If I lose, I suggest that half (of charter school students) will be in jeopardy,” Drummond said Tuesday. “Many states will say we are not going to pick and choose losers and winners in the religious circle. So we’re just not going to have charter schools.”
That idea was echoed by Starlee Coleman, the president and CEO of the National Alliance for Public Charter Schools, after Wednesday’s hearing.
“Charter schools across the country will lose access to federal funding (if the Supreme Court rules in favor of St. Isidore),” Coleman said. “They will lose access to state funding. They will lose access to school buildings. They will lose access to taxpayer-backed bonds. We won’t know what the rules are for charter schools anymore. The folks who are supporting St. Isidore — we understand where they’re coming from. They want more families to have options for schools. We want that too, and this is not going to give more families options.”
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St. Isidore’s path to the Supreme Court
St. Isidore’s road to the U.S. Supreme Court began in December 2022 with an attorney general opinion released by O’Connor.
In that opinion, O’Connor advised the Statewide Virtual Charter School Board (which was succeeded by the SCSB July 1, 2024) that state statutes barring charter schools from having a religious affiliation likely violated the free exercise clause of the First Amendment to the Constitution.
“In sum, we do not believe the U.S. Supreme Court would accept the argument that, because charter schools are considered public for various purposes, that a state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools in accordance with their faith alongside other private participants,” O’Connor wrote.
In February 2023, using O’Connor’s legal rationale, the Archdiocese of Oklahoma City and the Diocese of Tulsa jointly presented an application to the SVCSB to operate a Catholic virtual charter school. The board eventually approved the application by a split vote in June of that year.
By July, a group of 10 plaintiffs had filed a lawsuit against the school in Oklahoma County District Court, arguing a religious charter school amounted to state-sponsored religion. In a press release announcing the lawsuit, Rachel Laser, president and CEO of the national advocacy organization Americans United for Separation of Church and State, said the effort to open a Catholic charter school was part of a larger plot.
“We’re bringing today’s lawsuit to protect the religious freedom of Oklahoma public school families and taxpayers and to stop Christian nationalists from taking over our public schools across the nation,” said Laser, whose organization was one of a few representing the plaintiffs in the lawsuit. “Religious public charter schools are one piece of a larger Christian nationalist agenda to infuse Christianity into public schools.”
That lawsuit moved slowly through Oklahoma County’s court system. Meanwhile, the new school was moving forward with the SVCSB to finalize a contract. When it was finally signed in October, the contract included specific carve-outs to give the school more leeway to teach Catholic doctrine.
“In the event of any conflict between the terms of this contract and applicable law, the terms of this contract shall be deemed superseded by the conflicting applicable law; provided, however, that if the charter school is a religious nonprofit organization, the charter school shall be entitled to its religious protections even when in conflict with the applicable law,” the contract said.
Weeks after the contract was signed, Drummond filed a petition with the Oklahoma Supreme Court in which he asked justices to invalidate the contract and declare religious charter schools unconstitutional. In a press release announcing his filing, Drummond said allowing the school to open would set a precedent for all religions.
“The board members who approved this contract have violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars,” Drummond said at the time. “Today, Oklahomans are being compelled to fund Catholicism. Because of the legal precedent created by the board’s actions, tomorrow we may be forced to fund radical Muslim teachings like Sharia law. In fact, Gov. (Kevin) Stitt has already indicated that he would welcome a Muslim charter school funded by our tax dollars. That is a gross violation of our religious liberty. As the defender of Oklahoma’s religious freedoms, I am prepared to litigate this issue to the United States Supreme Court if that’s what is required to protect our constitutional rights.”
Although Drummond has now litigated the issue to the United States Supreme Court, he first argued it in the Oklahoma Supreme Court.
“If we ordain this church, if this stands, then this court has effectively authorized a state religion,” Drummond told Oklahoma’s nine Supreme Court justices.
A majority of those justices agreed. In June 2024, the court ruled against the school, saying a religious charter school violated Oklahoma statute and the First Amendment’s establishment clause.
“There is no question that the state will provide monetary support to teach a Catholic curriculum, and students at St. Isidore will be required to participate in the religious curriculum,” wrote Justice James Winchester for the majority. “The funding will go directly to St. Isidore, dissimilar from giving scholarship funds to parents. (…) The state will be directly funding a religious school and encouraging students to attend it.”
Months after the Oklahoma Supreme Court’s decision, the Statewide Charter School Board and St. Isidore appealed the ruling up to the U.S. Supreme Court. Now that the case has been briefed and argued before the nation’s highest court, a final decision on St. Isidore of Seville Catholic Virtual School’s constitutionality — and the constitutionality of religion in state-funded public schools more broadly — is expected by June.
