WASHINGTON, D.C. – Today, the U.S. Supreme Court heard oral arguments in Oklahoma Statewide Charter School Board v. Drummond where the Justices appeared to favor including a faith-based school in Oklahoma’s public charter school program that had been excluded due to being a religious institution. The case considers whether a state may discriminate and exclude a faith-based school from state funding in a public charter school program simply because of its religious affiliation. A second question in the case asks whether a religious private school that partners with the state to offer a free educational option for interested students becomes a “state actor” that treads over the First Amendment’s Establishment Clause by funding religious education.

The Supreme Court is expected to rule no later than the end of June 2025. A ruling in favor of the Oklahoma Statewide Charter School Board would allow the establishment of the nation’s first religious charter school.

Liberty Counsel filed an amicus brief in the case on behalf of Covenant Journey Academy (CJA) noting that SCOTUS has long recognized that parents bear the primary responsibility for directing their children’s education – a fundamental right that must necessarily include the ability to choose a school that accords with their values and meets their children’s needs. Liberty Counsel noted that private schools also offer parents an alternative when their public school fails to provide a safe, rigorous, or ideologically neutral environment. 

Put simply, when a state decides to subsidize private education, it cannot disqualify institutions based on their religious character, wrote Liberty Counsel.

The case arose when two Catholic dioceses in Oklahoma City and Tulsa applied to create a new religious charter school called St. Isidore of Seville out of their virtual online schools. Oklahoma’s Statewide Charter School Board approved the new charter school despite a state law barring a “nonpublic sectarian school or religious institution” from becoming a charter school. According to a press release, the board members granted the Catholic school’s application as a way of upholding their oath to the U.S. Constitution, in which SCOTUS has repeatedly held that religious groups cannot be excluded from publicly available programs solely because they are religious.

Oklahoma Attorney General Gentner Drummond sued the charter school board seeking to invalidate the contract because it violated the state law, and would also make the school a state actor funding religious instruction that students who attended St. Isidore would be then required to participate in. In June 2024, the Oklahoma Supreme Court agreed with AG Drummond and ruled that private charter schools are “state actors” and “governmental entities,” thus holding the state can then exclude religious organizations from its charter school program. 

Justice Amy Coney Barrett recused herself from this case. During the oral arguments, the Justices focused many of their questions on what distinguishes public, charter and private schools and exactly how much state influence would make a school a state actor. The Justices also considered whether exclusion of a religious school from a public benefit sets up a potential conflict between the First Amendment’s Free Exercise Clause and Establishment Clause with public funds going toward religious purposes.

Attorney Gregory Garre, representing the State of Oklahoma, argued that charter schools “bear all the hallmarks” of public schools under federal law and in 47 state statutes. He noted that there are “front and back-end controls” when the government creates a charter school, such as its creation when it allocates funds, and exercises control by holding them to state academic standards, and can shut them down if necessary when they have nearly no control over private schools. 

Garre stated that “public understanding is that charter schools are public schools,” and states can create a strictly secular public school system without having “to teach religion as truth” somewhere in the system. When the state is “outsourcing” a constitutional obligation such as education, Garre noted that entity becomes a state actor.

Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson seemed sympathetic to that notion that charter schools are “creatures of the state” and should look like public schools. Justice Jackson asserted that since Oklahoma law only provides for a secular public school system, St. Isidore is seeking a different “benefit” from everyone else that is simply not available.

However, attorney James Campbell, representing the Oklahoma Charter School Board, and attorney Michael McGinley for St. Isidore, argued that St. Isidore is neither state created nor state controlled since it independently existed before and after the charter school contract. They noted the Oklahoma law discriminates against both religious charter schools and the parents who want to send their children there by “categorically” barring religious schools telling them “they don’t belong.”

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all had trouble escaping past Supreme Court precedents that held “even creatures of the state” could not exclude people because of their religion.

Justice Kavanaugh said Supreme Court precedents are clear that you can’t treat religious people, institutions, and speech as “second class in the United States.” When you have a public program open to everyone except religious people, that seems like “rank discrimination against religion,” said Justice Kavanaugh.

Justice Sotomayor asked Campbell whether the Free Exercise Clause “trumps” the Establishment Clause in this case as to allow public funds for religious teachings.

Campbell indicated this case does not present an Establishment Clause problem because St. Isidore simply provides Oklahoma families with another school choice option and no students are required to profess a statement of faith or believe the school’s catholic teachings.

Ultimately, the Justices asked about what the greater implications might be on the school system of any ruling they may hand down.

Garre posited that a ruling in favor of St. Isidore becoming a charter school would render all public charter school laws in the nation unconstitutional because those laws require charter schools to be public schools and nonsectarian. However, McGinley stated a ruling for St. Isidore would only increase school choice by not excluding religious options from charter school programs.

Liberty Counsel Founder and Chairman Mat Staver said, “The Constitution does not permit the government to dictate which schools are ‘too religious’ for school choice programs. Faith-based, virtual schools offer parents an alternative when government-run schools fail to provide a safe or ideologically neutral environment for the families they claim to serve. The Supreme Court has made clear that when a state attempts to impose an educational model that contradicts the deeply held beliefs of parents, it trespasses on the Constitution. School choice strengthens education, and the High Court has the chance once again to affirm that parents have the right to direct the education of their children.”

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