Another Religious Charter School Case Expected to Reach Justices

Conservative groups seeking to include religious schools in taxpayer-funded charter school programs are expected to quickly return to the US Supreme Court after the justices split 4-4 in a case out of Oklahoma.

The evenly split court leaves in place an Oklahoma Supreme Court ruling that blocked a Catholic school’s bid to be the first religious charter school in the US.

The even split was possible because Justice Amy Coney Barrett recused from the case. Though she didn’t give a reason for sitting out, Barrett has close ties to Notre Dame law professor Nicole Stelle Garnett, who was an adviser to the school at the heart of the Oklahoma case. Barrett is a Notre Dame law graduate who joined the school’s faculty in 2002 before President Donald Trump appointed her to the US Court of Appeals for the Seventh Circuit in 2017.

Garnett said she isn’t aware of any cases currently working through the system that would give the justices another opportunity to decide the issue over the separation of church and state.

But advocates says they are already looking for the next opportunity.

“We’re certainly working really hard to do that, and hope to either by next term or term after for sure,” said Hiram Sasser. Sasser is the Executive General Counsel for First Liberty Institute, which filed an amicus brief in the case in support of the religious school.

One Justice

The court’s ruling Thursday in Oklahoma Statewide Charter School Board v. Drummond didn’t provide any commentary or say which way any of the participating justices had voted.

And while the decision has the effect of upholding the lower court’s ruling, it doesn’t set precedent, according to Neal McCluskey, the director of the Center for Educational Freedom at the Cato Institute.

Given Barrett’s recusal, McCluskey said he wouldn’t be surprised if another case came back to the court quickly.

Andy Smarick, a senior fellow at the Manhattan Institute, said it wouldn’t be unprecedented for groups to bring the same case back to the court after an eight-member court was unable to resolve it. The Manhattan Institute also filed a brief in support of the religious school.

Smarick noted that the justices heard a case in 2016 in which conservatives believed that court would undo so-called agency fees for public sector workers. Justice Antonin Scalia passed away after the case, Friedrichs v. California Teachers Association, was argued and the justices ultimately split 4-4.

Two years later, the justices voted 5-4 to do away with agency fees in Janus v. AFSCME with the newly appointed Justice Neil Gorsuch siding with the majority.

McCluskey said Barrett’s recusal was obviously important and had she not recused “there was probably a good chance the court would have sided with the religious charter 5-4.”

“Based on that 4-4 split, it sounds like to me that you just need to have the case heard by one person,” Sasser said.