Supreme Court Should Allow Religious School In Charter Program

The US Supreme Court has made clear three times since 2017 that the government can’t single out religious groups for exclusion when it creates a program and invites the public to participate. Doing so violates the free exercise clause of the First Amendment and is “odious” to the Constitution. Now, due to a misguided ruling by the Oklahoma Supreme Court, the nation’s high court has the chance to affirm this principle a fourth time.

The justices will hear oral arguments April 30 in Oklahoma Statewide Charter School Board v. Drummond, a case that asks whether states can exclude schools from participating in a charter school program simply because they’re religious. They can’t.

Like most states, Oklahoma invites a broad range of private organizations to apply to run charter schools, leading to competition, innovation, and more options for parents. Yet Oklahoma law explicitly excludes faith-based groups from the program.

Recognizing that exclusion as unconstitutional, the state charter school board approved a qualified religious school to participate—St. Isidore of Seville Catholic Virtual School—making it the first religious charter school in the nation and earning the praise of Oklahoma’s governor.

However, the state attorney general disagreed. Relying on outdated legal theories, he sued the board to have St. Isidore excluded from the charter program. In the face of clear federal precedent to the contrary, Oklahoma’s Supreme Court ruled in his favor, forcing the board to discriminate against St. Isidore.

My firm, Alliance Defending Freedom, took the board’s case to the US Supreme Court, where precedent is clear.

For years, the court has held that when government offers parents school choice, it can’t take away options that are deemed “too religious” or withhold benefits to religious families that the state offers to everyone else. Since 2017, the court has applied this religious liberty principle consistently, allowing public dollars to fund religious schools’ safe playground equipment (Trinity Lutheran Church of Columbia v. Comer), scholarships (Espinoza v. Montana Department of Revenue), and state tuition funds (Carson v. Makin).

In 1982, in Rendell-Baker v. Kohn, the court also made clear that government funding of a privately operated school doesn’t transform that school into a government actor—even if it receives 99% of its funding from the state, as happened in that case. Charter schools in Oklahoma have a great deal of autonomy when developing curricula, drafting student and employment policies, and making operational decisions. That’s by design, because innovation breeds success.

The state should give St. Isidore the same opportunity that other charter schools have to bring its distinctive approach to educating, which Oklahoma parents will then have the option to choose. This poses no challenge to the establishment clause. It’s the very sort of state neutrality toward religion the Constitution requires and that the Supreme Court has repeatedly affirmed.

But the Oklahoma Supreme Court ruled otherwise. Bypassing federal precedent, it characterized privately operated charter schools as “state actors” and “governmental entities.”

St. Isidore isn’t the government, though. It’s a private, religious, nonprofit organization founded by two Catholic dioceses that have experience running successful schools.

That’s a good thing. Faith-based groups provide a wide range of critical services to their communities, such as homeless shelters, foster care, adoption placements, refugee ministries, and medical care. These groups often receive government support to carry out their work. The misguided Oklahoma ruling, if upheld nationally, would deem many of these groups “state actors,” rendering them ineligible to do their work and stifling their positive impact.

St. Isidore wants to serve its community, too. The school plans to use a program and curriculum that has already produced a 100% graduation rate and 98% college admission rate for Oklahoma students. That’s especially promising for more than half of St. Isidore’s inaugural class, which, according to the school, would be from lower-income families. Many would also hail from rural areas, with the school’s virtual format being a game-changer for those too far away for in-person instruction.

Scrubbing St. Isidore from the charter program simply because it’s religious would rob these students of a potentially life-changing education, leaving many with no comparable alternatives. It would also enshrine discrimination against religious schools at a time when parents are demanding more educational options, not fewer. Parents want schools that faithfully steward their tax dollars, curriculum that aligns with their beliefs, and instruction that gives their children the best possible chance of success.

The Supreme Court can make this a reality. Its existing precedent already charts the way there.

The case is Oklahoma Statewide Charter School Board v. Drummond, U.S., No. 24-396, to be argued 4/30/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kristen Waggoner is CEO, president, and general counsel of Alliance Defending Freedom.

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