A deadlocked Supreme Court sidestepped a decision about whether to allow the United States’ first public religious charter school, preserving the church-state wall for now.
The divided court tied 4-4 Thursday in a consolidated pair of cases – Oklahoma Statewide Charter School Board v. Drummond, and St. Isidore of Seville Catholic Virtual School v. Drummond – that could have eroded a key tenet of the First Amendment while also profoundly changing America’s public schooling system.
The one-page opinion simply states, “The judgment is affirmed by an equally divided Court.” That means the Oklahoma Supreme Court’s decision remains in place, blocking a proposed virtual Catholic charter school from operating in the state.
Why We Wrote This
A case with the potential to erode the church-state wall and upend public schooling in America has ended in a rare Supreme Court tie. But the issues surrounding religious liberty and whether charters should be defined as public schools remain.
Justice Amy Coney Barrett recused herself from the case, leaving her eight peers on the high court bench to render an opinion. The opinion also does not create any precedent, opening the door for a similar case to be brought forward in the future.
“The issue is not dead. It will come back,” says Robert Kim, executive director of the Education Law Center, which opposed the establishment of a religious charter school. “There will be other attempts, perhaps in other states, in which private religious schools seek to enter the public school system through charter school systems.”
The legal journey related to St. Isidore of Seville Catholic Virtual School garnered significant attention given its wide-ranging implications. If the school had been established, taxpayer money would have flowed directly to the faith-based school. The funding shift, in effect, would have upended the long-held notion, first penned by Thomas Jefferson, that an invisible wall should separate church from state.
In recent years, the conservative-leaning U.S. Supreme Court has pushed back on that idea. The justices ruled, for instance, that a high school football coach in Washington should be allowed to pray on the field after games. The court has also said that states can’t exclude religious schools from tuition voucher programs.
These cases revolve around what some describe as tension between two clauses of the First Amendment, which states that Congress “shall make no law respecting an establishment of religion,” while also not “prohibiting the free exercise” of religion. Under Chief Justice John Roberts, justices have tended to prioritize the free exercise clause, whereas earlier courts put more emphasis on the establishment clause.
Charles Russo, director of a doctorate education program and research law professor at the University of Dayton, a Catholic institution, suspects the Supreme Court saw the proposed religious charter school as “a bridge too far.”
“It’s either everybody or nobody, and I think on the whole, giving it to nobody is the safer constitutional approach,” he says, referring to public funding for faith-based schools. He adds, “I think the Supreme Court is drawing a line in terms of where it’s going to go with extending aid.”
Charter school advocates also worried approval for a religious charter school would create a large, and perhaps existential, wrinkle for the fast-growing sector. Charter schools, in 46 states and Washington, D.C., are defined as a more autonomous form of public schools. They typically receive taxpayer dollars but follow certain accountability measures. They operate independently in the name of innovation and experimentation.
The pair of cases before the Supreme Court, however, were asking the justices to determine whether a charter school is actually a “state actor” in that contractual arrangement. Charter sector leaders had said a change to that definition would jeopardize their viability, given state constitutional bans on public funding for private schools.
Despite no written explanation from the justices, charter school advocates hailed the divided opinion as a win.
“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,” Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, wrote in a statement. “With this legal clarity, we can move forward with renewed focus on expanding access to high-quality public charter schools for every family nationwide.”
Oklahoma Attorney General Gentner Drummond, a Republican, broke from members of his own party when he sued the Oklahoma Statewide Virtual Charter School Board to prevent the virtual Catholic charter school from opening.
Ultimately, the Oklahoma Supreme Court sided with him, and, with Thursday’s rare Supreme Court tie, its decision stands. The Oklahoma justices noted that a charter school is a public school under state law, and St. Isidore would “evangelize the Catholic faith.”
“Enforcing the St. Isidore Contract would create a slippery slope and what the framers’ warned against-the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention,” the justices wrote in their June 2024 decision.
Any future cases before the U.S. Supreme Court may hinge on one person.
“I don’t think we can consider it settled,” says Jessie Hill, a professor at Case Western University’s School of Law. “The question is, Which way would [Justice] Barrett vote?”
