Can public dollars fund religous charter schools? SCOTUS says no.

In May, the U.S. Supreme Court issued a 4-4 decision, effectively upholding the Oklahoma Supreme Court’s ruling that it would be unconstitutional for St. Isidore of Seville Catholic Virtual School in Oklahoma City to receive public funding. The tie vote means the lower court’s decision remains in effect.

Due to the evenly split vote, the court issued a one-sentence ruling upholding the lower court’s decision, saying only: “The judgment is affirmed by an equally divided Court.”

Justice Amy Coney Barrett did not participate in the case. The Oklahoma Supreme Court had determined that approving the charter would amount to government endorsement of religion, violating state law.

Oklahoma initially argued that providing state funds for a religious charter school violates the Establishment Clause of the First Amendment. 

Opposing Arguments

In 2023, the Oklahoma Virtual Charter School Board approved the application of St. Isidore of Seville Catholic Virtual Charter School, despite the school’s claim to impose Catholic doctrine on students and to discriminate in admissions, discipline, and employment, which would violate state and federal law.

The Oklahoma Supreme Court ruled that charter schools are considered public schools under state law and, as such, cannot be religious. The justices concluded that allowing a religious charter school would violate the First Amendment’s Establishment Clause, which prohibits government endorsement of religion. Additionally, the court ruled that funding a religious charter school would violate Oklahoma’s state constitution, which explicitly prohibits public money from supporting religious institutions.

However, on appeal, the charter school claimed that it is a private entity; thus, the U.S. Constitution’s Establishment Clause does not apply.

In 2024, the Oklahoma Attorney General Gentner Drummond, a Republican, filed a lawsuit to block the school’s charter, calling it an “unlawful sponsorship” of a religious institution and “a serious threat to the religious liberty of all four million Oklahomans.”

The case was appealed to the U.S. Supreme Court, which agreed to hear arguments in October. During more than two hours of oral arguments, the justices appeared divided, largely along ideological lines, over whether to allow St. Isidore to become the nation’s first religious charter school.

A central question was whether Oklahoma’s actions violated the Free Exercise Clause of the U.S. Constitution by imposing, as the school claims, an undue burden on its religious mission.

Previous Decisions

Most recently, SCOTUS in 2022 barred Maine from excluding religious schools from a public tuition assistance program that allows parents to use vouchers to send their children to public or private schools. In a 6-3 decision, the court ruled that excluding religious schools from the tuition program violated the First Amendment’s Free Exercise Clause.

Gabe Roth, who leads the Supreme Court watchdog group called Fix the Court, praised Barrett’s decision to recuse.

“From an institutional and an ethical perspective, it is far better that Justice Barrett sat out this case due to her conflict than exercise a purported ‘duty to sit,’ which would’ve caused an air of bias to hang over it,” he said.

Evenly split decisions do not set a precedent, so the religious groups involved in the case will be able to bring another case.