Supreme Court Deadlocks in Loss for Religious Charter School (2)

The US Supreme Court divided evenly in a major case over the separation of religion and government, thwarting an effort in Oklahoma to create the nation’s first faith-based charter school.

The 4-4 split doesn’t set a nationwide precedent, and it leaves open the question of whether states with taxpayer-funded charter school programs are constitutionally required to incorporate religious institutions.

The tie was a product of Justice Amy Coney Barrett’s recusal. Although Barrett gave no explanation when she disqualified herself in January, she is close friends with a key adviser to the Catholic school at the center of the case. It’s unclear whether Barrett would take part in a future case raising the same issue.

As is its custom, the Supreme Court’s one-page order didn’t reveal which justices were on which side of the divide. The decision leaves intact an Oklahoma Supreme Court ruling that rejected the creation of St. Isidore of Seville Catholic Virtual School.

During oral arguments in the case on April 30, the nation’s highest court appearedclosely divided with Chief Justice John Roberts holding the pivotal vote. The final outcome suggests Roberts joined the court’s liberals in voting against the school’s creation.

At the time of the arguments, Roberts distinguished the Oklahoma clash from past Supreme Court decisions backing the use of public money for religious schools. He said authorizing sectarian charter schools would mean the government would have “much more comprehensive involvement” with religious education.

Religious Rights

Supporters of St. Isidore, including the Trump administration, said its exclusion from Oklahoma’s public charter school program would amount to unconstitutional discrimination against religion. They sought to extend recent Supreme Court decisions bolstering religious rights.

“While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future,” said Jim Campbell, chief legal counsel of the Christian legal group Alliance Defending Freedom. The advocacy group represented the Oklahoma Statewide Charter School Board, which backed St. Isidore’s creation.

Notre Dame law professor Nicole Stelle Garnett, who advised St. Isidore and whose friendship with Barrett may have prompted the justice’s recusal, said the legal fight wasn’t over.

“The question whether barring religious charter schools violates the Constitution remains live, and I remain confident that the court will eventually rule that it does,” Garnett said.

Oklahoma City Catholic Archbishop Paul Coakley and Tulsa Bishop David Konderla said in a joint statement that “families across the state of Oklahoma deserve the educational opportunities presented by St. Isidore of Seville Catholic Virtual School.”

St. Isidore’s opponents said states can create a secular public school system — and include charter schools — without having to fund religious education as well.

“The Supreme Court’s stalemate safeguards public education and upholds the separation of church and state,” said Rachel Laser, president of Americans United for Separation of Church.

School Impact

Oklahoma Attorney General Gentner Drummond, who pressed the case against St. Isidore’s creation, said a ruling in favor of the school would have let other religious denominations try to open their own charter schools.

The decision “ensures that Oklahoma taxpayers will not be forced to fund radical Islamic schools, while protecting the religious rights of families to choose any school they wish for their children,” Drummond said.

The case threatened to upend US charter school systems, affecting laws in as many as 46 states as well as the operation of a federal law that has dispersed billions of dollars to programs since 1994. The federal law says charter schools must be both “public” and “nonsectarian,” and many state laws have similar language.

Opponents said a decision backing St. Isidore would have exacerbated funding strains at non-religious charter schools, which compete with public schools for students and money. Schools across the US are already under pressure as they contend with a shrinking pool of students because of a declining birth rate.

“We are gratified that the Supreme Court did not take the radical step of upending public education by requiring states to have religious charter schools,” said Becky Pringle, president of the National Education Association, the country’s largest labor union.

The case is Oklahoma Statewide Charter School Board v. Drummond, 24-394.

(Updates with reaction starting in ninth paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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