Supreme Court to Weigh Tax-Supported Religious School Case (1)

The US Supreme Court accepted a major new church-state showdown, agreeing to consider whether states with public charter schools are constitutionally required to approve and fund religious institutions as part of the taxpayer-supported program.

The high court said Friday it will hear two appeals aimed at creating the nation’s first Catholic charter school in Oklahoma. The justices will review an Oklahoma Supreme Court decision that said allowing the school would violate the US and state constitutions.

The appeals seek to extend recent Supreme Court decisions that have strengthened religious rights against what the court’s conservative majority sees as governmental discrimination.

“Oklahoma cannot deny generally available benefits to a school solely because it is religious,” St. Isidore of Seville Catholic Virtual School argued in its appeal. The state board that authorizes and oversees charter schools is also appealing.

Justice Amy Coney Barrett didn’t take part in the court’s consideration of the appeals. Although Barrett gave no explanation, the New York Times reported in 2023 that one of St Isadore’s advisers is Nicole Stelle Garnett, a University of Notre Dame law professor who is a close friend of Barrett’s.

Barrett’s recusal means St. Isadore will almost certainly need the votes of the court’s other five conservatives to win its case.

The court put the case on an expedited briefing schedule, indicating the justices will hear arguments in April and probably rule by July.

Backing Religion

The Supreme Court ruled in 2020 that states must include religious schools in programs that offer taxpayer subsidies for private education. Two years later, the court said Maine can’t exclude faith-based schools from a program that pays for private instruction in areas without public schools.

Oklahoma Attorney General Gentner Drummond urged the court not to hear the latest appeal, saying the state court reached the right conclusion. Drummond, a Republican, sought to distinguish the earlier Supreme Court decisions, saying they “concerned state subsidization of tuition at existing private religious schools, not state establishment of new public religious schools.”

A key question for the high court is whether St. Isidore’s school would be a so-called state actor, meaning it would be subject to the same constitutional requirements as if it were government-run. The Oklahoma Supreme Court concluded that St. Isidore would be a state actor as a charter school and then said the state is prohibited from funding the school under the US constitutional provision that bars the government from establishing a religion.

The cases are Oklahoma Statewide Charter School Board v. Drummond, 24-394, and St. Isidore of Seville v. Drummond, 24-396.

(Updates with possible explanation for Barrett recusal in fifth 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

Greg Stohr

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