This summer, in a hotly watched Oklahoma case, the U.S. Supreme Court will rule on whether states can ban faith-based charter schools or whether such restrictions violate the First Amendment’s right to the free exercise of religion. The outcome of St. Isidore of Seville Catholic Virtual School v. Drummond has big implications for charter schooling, of course, but some observers have argued it could also have wider implications for public education. To help make sense of what’s going on, I can think of few better than Nicole Stelle Garnett, the John P. Murphy Foundation professor of law at Notre Dame and author of Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America. Garnett, who clerked for U.S. Supreme Court Justice Clarence Thomas, has long argued that bans on faith-based charters are unconstitutional and been closely involved with this case. Here’s what she had to say.
—Rick
Rick: So, what is St. Isidore of Seville Catholic Virtual School v. Drummond all about?
Nicole: This case asks the Supreme Court whether provisions of Oklahoma law that prohibit religious charter schools—both by requiring them to be “nonsectarian” in their operations and by precluding them from being affiliated with a religious institution—violate the First Amendment’s Free Exercise Clause. In 2023, the Oklahoma Statewide Virtual Charter School Board approved the nation’s first religious charter school, St. Isidore of Seville Catholic Virtual School. In doing so, the board concluded that the state’s charter school law unconstitutionally discriminated against religion. The Oklahoma Supreme Court subsequently issued an opinion ruling that the approval of St. Isidore was unconstitutional under both the U.S. Constitution and Oklahoma’s Constitution and ordered the board to rescind its contract. The board and St. Isidore both filed cert petitions—requests for the Supreme Court to review a lower court’s decision—which the Supreme Court granted. Oral arguments will be held the last week of April, and a decision is expected by July.
Rick: What are the key points of disagreement?
Nicole: Legally, there really is only one point of disagreement: whether charter schools in Oklahoma are private actors protected by the First Amendment’s Free Exercise Clause or government actors bound by the Establishment Clause. This disagreement flows in part from the fact that charter schools are privately operated but called “public schools” because they receive taxpayer money. Opponents of religious charter schools argue that the analysis ought to begin and end with the label “public,” but the Supreme Court made clear in the 1974 case Jackson v. Metropolitan Edison Company that the term “public” has no constitutional significance because constitutional rights don’t depend on statutory labels.
Under the so-called state action doctrine, a private entity will be treated as a government actor only in the rare circumstances when it is effectively acting as the agent of the state. In the case of charter schools, the question is whether the school is so closely controlled by the government that its actions are effectively the actions of the state. That’s not the case with Oklahoma’s charter schools, including St. Isidore—a private entity that is a joint project of Oklahoma’s two Roman Catholic dioceses. In contrast to traditional public schools operated by school districts, which are government entities, all charter schools in Oklahoma, and most charter schools in other states, are privately operated and are free from most education regulations in order to foster educational pluralism and expand educational opportunities. While this case implicates other policy disagreements, such as whether religious charter schools are a good idea or not, these questions are not at issue in the case.
Rick: Legally, what’s the significance of this case?
Nicole: As far as the law goes, the significance of this case is being overstated. Some commenters have warned that this case asks the court to remove the last brick in the mythical wall that separates church and state. Yale Law School professor Justin Driver told The New York Times that a decision to allow religious charter schools “would represent nothing less than a sea change in constitutional law” with ramifications “for our constitutional order.” Leaving aside the fact that the words “separation of church and state” do not appear in our Constitution—and have made no end of mischief in our constitutional discourse—that’s just not true. Neither of the petitioners—the Oklahoma State Charter School Board and St. Isidore—are asking for the court to change constitutional law at all. They are not seeking to change the Free Exercise doctrine or the Establishment Clause doctrine. Instead, they are asking the court to apply existing doctrine to the particular case of charter schools in Oklahoma.
The stated concern seems to be that a decision in favor of St. Isidore would open the door to religious public schools more broadly—even perhaps to religious instruction in traditional public schools. But the case isn’t about traditional public schools—and nobody is suggesting that the First Amendment permits, let alone requires, traditional public schools to teach religion. The only question in the case is whether St. Isidore is, for purposes of First Amendment analysis, a private or a government actor. Traditional public schools are unquestionably government actors, which are bound by the Establishment Clause and must be secular schools.
Rick: How much will this matter for education policy?
Nicole: The significance for educational policy more broadly is being exaggerated. Fordham Institute President Michael Petrilli, for example, has predicted that if the court rules for St. Isidore, “Religious charter schools would become legal overnight in every one of the 46 states with charter school laws on the books.” Again, not true. For the reasons I’ve already explained, the state action analysis that is pivotal to this case is specific to facts in Oklahoma and turns on whether a private actor—in this case a charter school—is so closely controlled by the government that its actions are attributable to the government. The court’s ruling will only address the facts on the ground in one state—Oklahoma—that has chosen to give private organizations substantial autonomy to operate charter schools in order to promote pluralism and educational opportunity. Charter schools in other states are more closely controlled by the government, although not necessarily in ways that make them state actors.
The court’s decision will clarify the factors relevant to the state-action determination, which should shed light on whether charter schools in other states enjoy the protection of the Free Exercise Clause. In some states, the answer will be yes, in which case prohibitions on religious charter schools are presumably unconstitutional; in others, perhaps not, in which case such prohibitions are constitutionally permissible. And, as Peter Greene has argued, all states could choose to amend their charter laws to transform charter schools into state actors, although, in my view, that would be a bad thing for educational pluralism and choice.
Rick: Do the court’s recent rulings on religious liberty offer insight into how it might rule?
Nicole: Yes. In a series of recent decisions, culminating in the court’s 2022 ruling in Carson v. Makin, the Supreme Court has made clear that the Free Exercise Clause prohibits government discrimination against religion. Specifically, these decisions make clear that when the government creates public programs that enlist private organizations to advance public goals like education, it cannot exclude qualified religious organizations from participating because religious discrimination is “odious to our Constitution.”
In Carson, the court held that Maine violated the Free Exercise Clause by excluding religious schools from a voucher program for rural high school students. Writing for the majority, Chief Justice John Roberts concluded that “the State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” The Supreme Court’s ruling in Carson opened the door to religious charter schools, as it makes clear that a state choosing to fund private education must extend benefits to religious schools. As Chief Justice Roberts reiterated in his majority opinion, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” This is why the state-action doctrine is pivotal in the case. Although Carson does not address the question of religious charter schools, if charter schools are treated as private schools for the purposes of federal constitutional law, then laws prohibiting religious charter schools would violate the First Amendment.
Rick: What are some of the potential ramifications?
Nicole: The most obvious is that a ruling in favor of St. Isidore will require Oklahoma, and presumably other states, to stop enforcing prohibitions on religious charter schools. But I don’t think that we will see a rapid expansion of religious charter schools for two reasons. First, and sadly, charter school authorizations have slowed to a trickle in many states. And a victory for St. Isidore doesn’t mean that religious organizations are entitled to a “get-out-of-the-charter-authorization-process-free card.” Many states can and will continue to make it hard to secure charters. That’s unfortunate, but it’s not unconstitutional.
Second, in many states, religious schools already have the option of participating in private school choice programs. Many religious schools will reasonably opt to participate in a voucher or ESA program, if available, rather than go through the hassle of the charter school authorization process, even though the funding available through voucher and ESA programs is lower than what charters receive on a per-pupil basis—in some states, significantly so. It’s also worth pointing out that a majority of states with charter schools prohibit private schools from “converting” to charter schools. These prohibitions presumably would impede the expansion of religious charter schools.
Rick: What do you make of the heated reactions to the case?
Nicole: If anything, I think the effects are being overblown on both sides. Opponents argue that a decision in favor of religious charter schools might represent the death knell of charter schools entirely in blue states. They claim the opposition to funding religious education is so strong that states might refuse to authorize any new charter schools—and possibly close existing ones—instead of allowing for religious charters. I’m dubious about the claim that state regulators would actually throw millions of children out of schools that serve them well.
Undoubtedly, some state officials are opposed to funding religious schools in general, or schools affiliated with certain religions in particular. For example, Oklahoma Attorney General Gentner Drummond has frequently expressed his concern that a decision in favor of St. Isidore might open the door to Oklahomans’ taxpayer dollars going to schools operated by religions that “most Oklahomans would consider reprehensible and unworthy of public funding,” including Islamic schools. The fact that public officials dislike religion, however, is not a justification for religious discrimination. It is one reason that the Constitution prohibits it. On the other hand, some proponents of parental choice and faith-based schools probably overestimate how transformational opening the door to religious charter schools would be, given the exponential expansion of private school choice and the constriction in the growth of charter schools.
That is not to say that there are zero implications for American education policy. According to the National Alliance for Public Charter Schools, 327 new charter schools opened in the 2022-23 school year, the last year for which data are available, and not one of those schools was religious. For the past 34 years, since the first charter school law was passed in Minnesota in 1991, religious schools have not had access to the funds available to secular charter schools. And, until quite recently in most states, they didn’t have access to public education funds at all, forcing them to rely on private tuition dollars for their operating revenue. Many thousands of them closed because they were forced to choose between abandoning their religious mission and receiving public funds. A victory for St. Isidore would change that basic fact of the American educational landscape.
Rick: Do you have a prediction as to how the court is likely to rule?
Nicole: I am very hopeful that the Supreme Court will agree that charter schools in Oklahoma are not state actors and that the state’s charter school board correctly concluded that the provisions of Oklahoma law prohibiting them from being religious violate the First Amendment. I’m also hopeful that the court will clarify the state action doctrine, which has broad implications that extend far beyond the education context given the extent to which governments engage private actors to advance different public policy goals like social services, health care, adoption, and job training, among others.
Justice Amy Coney Barrett recused herself from considering whether the court should take up this case and will presumably recuse when the court decides the case as well, so it is possible that the justices could divide 4-4, in which case the Oklahoma Supreme Court’s decision would be affirmed without any precedential value. I don’t believe that will happen. I think the justices will agree with former Oklahoma Attorney General John O’Connor, who concluded in a 2022 opinion letter that the state’s charter school law violated the Free Exercise Clause since “[t]he state cannot engage private organizations to ‘promote a diversity of educational choices,’ … and then decide that any kind of religion is the wrong kind of diversity. That’s not how the First Amendment works.”
Rick: What do you think people should watch for at oral arguments?
Nicole: As a former Supreme Court clerk, I think the practice of “reading the oral-argument tea leaves” is typically not predictive of the outcome of a case. I expect a very hot bench with tough questions for both sides. I am particularly interested in the kinds of questions the Justices ask about the public-private divide that we’ve been discussing. I also anticipate questions from the conservative justices about what the possible implication of a ruling for—or against—St. Isidore means for other kinds of government contractors like religious charities and from the liberal justices about charter schools in different states and perhaps also traditional public schools. In the press, Chief Justice Roberts and Justice Brett Kavanaugh are portrayed as most-moderate, “swing” votes, of the conservatives. Personally, I think these characterizations are both wrong and unhelpful, but in any event, both have consistently voted solidly on the side of religious liberty. In fact, Roberts authored all three of the recent decisions—Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin—clarifying that the Free Exercise Clause prohibits religious discrimination in public benefit programs. I hope that both Roberts and Kavanaugh will view this as a straightforward application of that nondiscrimination principle.
Rick: Some have argued that this ruling will have broader ramifications for public education. Do you agree?
Nicole: Legally, this case has nothing to do with traditional public schools, and the court’s ruling will have zero ramifications for their operations. Those arguing otherwise are engaging in unhelpful and misleading hyperbole. As I said previously, the case turns entirely on whether St. Isidore is a private actor or a government one. District public schools are unquestionably government actors. Personally, I think of “public education” more broadly as “government-funded education delivered by a wide range of public and private schools.” Under that definition—which is taking hold in many states, especially as parental choice expands—the case could open the door to a new form of public education, namely, privately operated religious charter schools. And those who favor educational pluralism, and parental choice, ought to welcome that possibility.
