Split 4-4 in a decision announced this morning, the U.S. Supreme Court left in place the Oklahoma Supreme Court’s decision to block the creation of a Catholic charter school.
Justice Amy Coney Barrett, a devout Catholic with a history tied to religious freedom initiatives at Notre Dame Law School, recused from the case, leaving only eight justices to decide the case of St. Isidore of Seville Catholic Virtual School. Because the justices were evenly split, the constitutionality of a religious charter school and the Oklahoma Constitution‘s ban on public money to support religious organizations remains an open question.
Oklahoma Attorney General Gentner Drummond, who filed the challenge against the proposed school, celebrated the decision.
“The Supreme Court’s decision represents a resounding victory for religious liberty and for the foundational principles that have guided our nation since its founding,” Drummond said in a statement. “This ruling ensures that Oklahoma taxpayers will not be forced to fund radical Islamic schools, while protecting the religious rights of families to choose any school they wish for their children.”
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 justices did not write a formal opinion to go with their decision, nor did they publish how each voted.
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The case was argued before the court April 30. During the hearing, Justices Katanji Brown Jackson, Sonya Sotomayor and Elena Kagan each signaled skepticism to the idea of a religious charter school. Justices Brett Kavanaugh and Samuel Alito seemed more open to it. Chief Justice John Roberts, as well as Justices Clarence Thomas and Neil Gorsuch, were less overt in their thoughts on the matter. Thomas and Gorsuch, both part of the court’s conservative majority, could have sided with Kavanaugh and Alito. If that were the case, it would mean Roberts — known as a more moderate conservative — could have voted with the court’s three liberal justices.
A day before the April 30 hearing in Washington, D.C., Drummond spoke with NonDoc about the case and speculated on Barrett’s recusal.
“Amy Coney Barrett has recused — appropriately because she was involved in the Notre Dame cabal that hatched this scheme and found the state that would not challenge the rule of law,” Drummond said. “Think about the trifecta that they had — Gov. (Kevin) Stitt, (State Superintendent of Public Instruction) Ryan Walters and (former Attorney General) John O’Connor. Three people loosely associated with law. I defeat one of the legs of the trifecta, and I’m defined by the rule of law. That’s how that happened. So that’s why we’re here.”
Drummond is not alone in suspecting the attempt to open St. Isidore was a “scheme” to challenge nonsectarian requirements in charter school law. When the case was argued before the Oklahoma Supreme Court, Justice Yvonne Kauger asked, “Are we being used as a test case?”
In December 2023, Politico’s Heidi Przybyla published an in-depth look at the national interests hoping for the eventual U.S. Supreme Court approval of St. Isidore.
“The Christian conservative legal movement, which has its fingerprints all over what’s going on in Oklahoma, is a pretty small, tight knit group of individuals,” Paul Collins, a legal studies and politics professor at the University of Massachusetts Amherst, was quoted as saying. “They recognize the opportunity to get a state to fund a religious institution is a watershed moment.”
Opponents of the school celebrated the split decision Thursday.
“The Supreme Court’s stalemate safeguards public education and upholds the separation of church and state. Charter schools are public schools that must be secular and serve all students,” said Rachel Laser, the CEO of Americans United for Separation of Church and State. “St. Isidore of Seville Catholic Virtual School, which planned to discriminate against students, families, and staff and indoctrinate students into one religion, cannot operate as a public charter school. A religious public school would be an abject violation of religious freedom. We will continue our efforts to protect inclusive public education. We call on this nation to recommit to church-state separation before this safeguard of democracy and freedom is further attacked.”
The National Alliance for Public Charter Schools, which submitted an amicus brief in the case, also applauded the ruling.
“Today’s decision from the Supreme Court leaves the lower court’s ruling in place and sends an important message: public charter schools are just that, public,” said Starlee Coleman, president & CEO of the organization. “This case may not be the last time the court takes up the question of religious charter schools, but today’s outcome offers clarity for families and educators.”
Michael Scaperlanda, the chairman of St. Isidore’s board of directors, said he was “disappointed” with the decision.
“We remain firm in our commitment to offering an outstanding education to families and students across the state of Oklahoma, and we stand committed to parental choice in education, providing equal opportunity to all who seek options when deciding what is best for their children,” Scaperlanda said. “We are grateful to Gov. Kevin Stitt and his courage in supporting school choice, and we are thankful for the generous representation provided by Notre Dame Law School’s Religious Liberty Clinic and by Michael McGinley at Dechert LLP. In light of this ruling, we are exploring other options for offering a virtual Catholic education to all persons in the state.”
Drummond’s opposition to the school pitted him against other Oklahoma Republicans. In a statement released through the First Liberty Institute, a conservative law firm that represented Walters, the State Board of Education and State Department of Education as they filed amicus briefs supporting St. Isidore in the case, Walters said the decision was related to “bigotry.”
“Allowing the exclusion of religious schools from our charter school program in the name of 19th century religious bigotry is wrong,” Walters said. “As state superintendent, I will always stand with parents and families in opposition to religious discrimination and fight until all children in Oklahoma are free to choose the school that serves them best, religious or otherwise.”
The First Liberty Institute executive general counsel, Hiram Sasser, also hinted at the impermanence of the decision in his own statement.
“We are disappointed, but the result of this 4-4 decision with no opinion is that the fight against religious bigotry will continue in Oklahoma and across the country,” Sasser said. “We will not stop until we can bring an end to religious discrimination in education.”
In a tweet Thursday, Stitt said the “4-4 tie is a non-decision.”
“Now we’re in overtime. There will be another case just like this one and Justice Barrett will break the tie. This is far from a settled issue. We are going to keep fighting for parents’ rights to instill their values in their children and against religious discrimination.”
St. Isidore decision leaves Oklahoma ruling in place
Relying on a December 2022 opinion from then-Attorney General John O’Connor, the Archdiocese of Oklahoma City and Diocese of Tulsa submitted an application to the Statewide Virtual Charter School Board in early 2023 to jointly operate a charter school. In their application, the entities said prohibitions on religion in charter schools constituted religious discrimination.
But Drummond disagreed, and he filed the case against the board and the school after the SVCSB approved the application.
Read the Oklahoma Supreme Court decision
Oklahoma Supreme Court: St. Isidore Catholic charter school unconstitutional by Tres Savage and Bennett Brinkman
“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.
In June 2024, the Oklahoma Supreme Court agreed with Drummond, ruling that a religious charter school violates both the Oklahoma and the U.S. constitutions.
“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,” Justice James Winchester wrote in the majority opinion. “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.”
Ultimately, at least four of the U.S. Supreme Court’s justices agreed with Winchester and Drummond, meaning that for now, the nation’s 45 states that allow charter schools can retain prohibitions on sectarian institutions operating them.
(Update: This article was updated on Thursday, May 22, 2025, at 1:01 p.m. to include a statement from a member of the St. Isidore board. It was updated a second time at 1:15 p.m on Thursday, May 22, 2025, to correct the attribution of that statement.)
