The Court v. The Wall
Frank S. Ravitch May/June 2025Is a fully state-funded Roman Catholic charter school constitutionally permissible? Until recently that question would have seemed laughable. Today the U.S. Supreme Court isn’t laughing.
There were two likely possibilities when the United States Supreme Court decided to hear Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, more commonly known as the religious charter school case. First, the Court is planning to further broaden its unprecedented expansion of mandatory funding for religion under the free exercise clause. Or second, the Court will use this case to demonstrate that its free exercise funding doctrine does not apply to public schools and therefore does have some limits.
It is hard to know which of these possibilities is correct. If it takes the first path, however, there will be almost nothing left of the establishment clause, the principle of federalism in religion cases, or the principle of judicial restraint. The Court would expose what has seemed obvious since its 2022 term: that it is hostile to the establishment clause as a limit on government support for religion and it reads the free exercise clause as carte blanche to require government financial support for religion whenever there is a secular government-funded option.
Make no mistake: despite protestations to the contrary by St. Isidore and the Oklahoma Charter School Board, charter schools are public schools under Oklahoma law. This is true under the charter school law itself, which specifically states charter schools are public schools—a conclusion reached by the Oklahoma Supreme Court with significant legal support and based on the history of charter schools in Oklahoma and the U.S. generally. Prior to 2020, any arguments to the contrary would have been viewed as absurd. Since 2020, however, the Supreme Court and other courts seem more willing to ignore the obvious and contort facts to reach the results they want in religion cases. The very fact that the Court even agreed to hear this case is cause for concern.
The Background
Oklahoma has a system of charter schools, including virtual charter schools. Under the Oklahoma Charter Schools Act (70 O.S. Supp. 2022, §3-132), charter schools are expressly public schools. Charter schools are free to use innovative curricular approaches, but as public schools they must be nonsectarian. Virtual charter school agreements are administered by the Oklahoma Statewide Virtual Charter School Board.
In October 2023 the Oklahoma Statewide Virtual Charter School Board voted 3-2 to contract with St. Isidore of Seville, a Catholic virtual school. In doing so, the Oklahoma Board excluded standard provisions in the contract. As the Oklahoma Supreme Court explained: “The St. Isidore Contract varies significantly from the model contract. The St. Isidore Contract recognizes that certain rights, exemptions, or entitlements apply to St. Isidore as a religious organization under state and federal law, including the ‘ministerial exception’ and aspects of the ‘church autonomy’ doctrine.”1
The Oklahoma attorney general filed suit to compel the Oklahoma Statewide Virtual Charter School Board to rescind the contract with St. Isidore. The attorney general argued that under Oklahoma law, charter schools are public schools and thus must remain nonsectarian because they serve the people of Oklahoma as public entities. Therefore, the contract with St. Isidore violates the Oklahoma Charter Schools Act. Moreover, he argued, having a religious charter school violates both Article 2, Section 5, of the Oklahoma Constitution and the establishment clause of the U.S. Constitution.
At the State Supreme Court
The Oklahoma Supreme Court by a 7-1 majority agreed that the contract with St. Isidore violated the Oklahoma Constitution and by a 6-2 majority that it violated the Charter School Act and the establishment clause of the U.S. Constitution.
The court explained that providing a contract to a religious charter school is obviously a violation of Article 2, Section 5, of the Oklahoma Constitution. That section reads: “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”
Since charter schools are expressly public schools under the Charter Schools Act, they are established and funded by government using taxpayer dollars. Therefore, a religious charter school violates Article 2, Section 5, on its face. These schools are state actors under both Oklahoma and federal constitutional law.
The Oklahoma Supreme Court also held that the actions of the Oklahoma Statewide Virtual Charter School Board violate the Oklahoma Charter Schools Act. The court explained that under Article 13, Section 1, of the Oklahoma Constitution the legislature has a duty to provide free public schools. The Oklahoma Charter Schools Act was enacted “to help carry out this duty.”2 As explained above, the act specifically declares that charter schools are public schools, so cannot be sectarian. St. Isidore did not claim to be nonsectarian, and the actions of the Oklahoma Statewide Virtual Charter School Board demonstrate it understood that St. Isidore is a religious institution. Therefore, the court held that the board’s actions violate the Charter Schools Act, the state constitutional duty to provide free public schools, and Article 2, Section 5, of the Oklahoma Constitution.
The Oklahoma Supreme Court also addressed whether Article 2, Section 5, of the Oklahoma Constitution is a so-called Baby Blaine amendment. Baby Blaine amendments are state constitutional amendments mostly passed in the late 1800s that were based on the infamous “Blaine Amendment” proposed in Congress by then Maine congressman James Blaine. That proposed amendment would have denied government aid to educational institutions with religious affiliations. It came at a time when Catholic schools were dramatically increasing in number. The amendment failed to pass the U.S. Senate, so did not become law.
This failed federal amendment was supported, in part, by anti-Catholic bigotry, and the state Baby Blaine amendments that followed in its wake were also often supported by significant anti-Catholicism. In 2020 a majority of justices on the U.S. Supreme Court acknowledged what had already seemed clear: Baby Blaine amendments are discriminatory because they often support discrimination based on religious status and because of their anti-Catholic history.
Yet, Article 2, Section 5, of the Oklahoma Constitution, which does prohibit funding for religious entities but not only for educational entities, is both textually and historically quite different from Baby Blaine amendments. The Oklahoma Supreme Court explained in some detail why the text and history of Article 2, Section 5, do not support it being a Baby Blaine amendment. The court also cited several earlier Oklahoma Supreme Court cases that specifically held Article 2, Section 5, is not a Baby Blaine Amendment.
Establishment Versus Free Exercise?
Based on the above analysis, the Oklahoma Supreme Court decided the St. Isidore case on adequate independent state grounds. It is therefore unusual that the U.S. Supreme Court would agree to hear the case unless at least four justices believed the application of Article 2, Section 5, and the Oklahoma Charter Schools Act might violate the free exercise clause of the U.S. Constitution. There is a federal question in the case because the Oklahoma Supreme Court also found a violation of the establishment clause of the U.S. Constitution, but given the adequate state grounds, the U.S. Supreme Court would not need to reach that issue.
Still, the Oklahoma Supreme Court did reach the establishment clause issue. The court ultimately held that, based on several U.S. Supreme Court cases, “the establishment clause prohibits public schools (state actors) from requiring students to participate in religious activities. Because it would be a government entity and state actor, St. Isidore cannot ignore the mandates of the establishment clause, yet a central component of St. Isidore’s educational philosophy is to establish and operate the school as a Catholic school.”3 The court is, of course, correct. A religious public school, whether a charter school or not, is brazenly unconstitutional under the establishment clause.
Yet the state board and St. Isidore raised a free exercise argument. In a line of cases beginning in 2017 and culminating with Carson v. Makin in 2022, the U.S. Supreme Court dramatically expanded what counts as discrimination under the free exercise clause. The first two cases held that government could not discriminate against religious entities in a government program based on religious status; that is, simply because those entities are religiously affiliated.
In the first two cases decided in 2017 and 2020 the distinction between religious status and religious use seemed important. Yet in 2022 the Court abandoned its own distinction between religious status and use of government funds when it held in Carson v. Makin that Maine must include religious schools in a program that paid for students in remote areas to attend private schools because those remote areas could not sustain public schools.
However, Carson v. Makin demonstrates why the state board and St. Isidore should lose their case. In Carson the Court held: “Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung state, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.”4
Therefore, on its face the analysis from Carson v. Makin does not apply to public schools, which are bound by the establishment clause, and which are, of course, state actors. The Oklahoma Supreme Court correctly held the free exercise claim is not valid even under the current U.S. Supreme Court’s expansive free exercise holdings. If Oklahoma ran a system in which parents could choose to send their children to private schools and the state would then reimburse the tuition, Oklahoma could not exclude religious schools under Carson v. Makin. Yet that is a far cry from requiring the state to operate religious public schools through its charter school program.
Which Path?
It would have been easy for the Supreme Court to deny certiorari and not hear this case. It is a well-established principle of judicial restraint that the Supreme Court does not need to decide cases that state courts have decided based on “adequate and independent state grounds.” If those state grounds violate the U.S. Constitution, this limitation does not apply, but the Oklahoma Supreme Court decision is well within the bounds of constitutionality as set forth by the Supreme Court in Carson v. Makin. Additionally, as explained throughout this article, both the Oklahoma Charter Schools Act and the Oklahoma Constitution provide adequate independent state grounds. So why did the Court agree to hear the case? That is the $64,000,000 question!
Of course, it takes only four justices to agree to hear a case, and those justices may not all have the same reasons for wanting to hear a case. Therefore, it is possible that the granting of certiorari in this case does not say anything about a likely outcome. Yet recent history suggests otherwise, with the Court having granted certiorari in an unprecedented number of religion cases since 2020 and usually holding in a manner that supports extraordinary expansion of free exercise rights and limitations on establishment concerns.
The Oklahoma religious charter school case could serve to limit the U.S. Supreme Court’s unprecedented expansion of mandatory government funding for religious entities anytime the government funds private nonreligious entities. On the other hand, the case could redefine what counts as public and what counts as private for free exercise of religion purposes and, in doing so, require government to provide religious charter schools if they provide nonreligious charter schools. This would continue the Court’s recent evisceration of federalism in cases in which states try to protect their previously recognized right not to fund religion with taxpayer dollars. It would also continue the Court’s recent unabashed mischaracterization of facts in cases involving establishment clause concerns.
Given that the Court had no reason to hear the St. Isidore case, it is reasonable to be concerned that the Court will take the latter path. This would go against more than 80 years of precedent, but precedent has not stopped the current Court from doing what it wants. The guiding principle for the current Court seems to be teleology rather than fidelity to traditions and modes of constitutional interpretation.
All hope is not lost, however! Perhaps this cynical, albeit well-documented, reading of where the Court might go in this case is wrong. It would be refreshing to see the Court simply acknowledge the reality that Oklahoma Charter Schools are public schools and that public entities are not subject to the same free exercise funding requirements as government funding programs open to nonreligious private entities. This too is a possible outcome. We will most likely find out in June.
1 Drummond v. Oklahoma Statewide Virtual Charter School Board, 558 P.3d 1, 7 (Oklahoma 2024).
2 Ibid., at 9.
3 Ibid., at 13, 14.
4 Carson v. Makin, 596 U.S. 767, 785 (2022).
Article Author: Frank S. Ravitch
Frank S. Ravitch is professor of law and Walter H. Stowers chair of Law and Religion, Michigan State University. He is the author of numerous books, law review articles, essays, book reviews, and book chapters, as well as amicus briefs to the U.S. Supreme Court. This article first appeared in The Conversation.