In the Supreme Court’s first decision involving public education in the 2024-25 term, the Court blocked the State of Oklahoma from a establishing a public religious charter school.
In Oklahoma Statewide Charter School Board v. Drummond, the nine-member Supreme Court deadlocked, splitting their votes 4-4, following Justice Amy Coney Barrett’s recusal from case. The reason for Justice Barrett’s recusal is not publicly known but it is widely speculated that it is because she is close friends with an advisor to the religious school involved in the dispute.
By splitting their votes 4-4, the Supreme Court (by operation of its internal rules) left in place the 6-2 ruling of Oklahoma’s high state court, which blocked Oklahoma from using government money to establish what would have been the nation’s first religious charter school. Called the St. Isidore of Seville Catholic Virtual School, it represented a joint effort by the Catholic Archdiocese of Oklahoma City and the Archdiocese of Tulsa to offer virtual learning from kindergarten through high school with Catholic teaching imbedded in its curriculum—established through government support.
The First Amendment, as it relates to religion states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Until the 20th century it was generally understood that the so-called Establishment Clause of the First Amendment did not allow for public spending to support religious activities. This changed with the Court’s decision in 1947 in the matter of Everson v. Ewing Township. There, the Court upheld legislation that authorized payment by local school boards for the cost of transportation to and from schools, which included private schools, many of which were religious parochial schools. The Court’s 5-4 decision in Everson, reasoned that the legislation at issue was constitutionally permissible because it was viewed as “secular” in nature based upon its public purpose to provide safe transportation of students, including those attending parochial schools.
The underlying facts of Oklahoma Statewide Charter School Board v. Drummond go much further than just funding transportation. At issue was whether the State can fund a charter school whose clear purpose is to promote religion. Although today’s decision does not establish any nation-wide new precedent on the issue—due to the Court splitting 4-4 without a majority—it all but certainly invites a similar challenge in the future. Assuming no member or members of the Court recuse themselves from participation, the next case may very well establish a nation-wide precedent that would allow for religious charter schools to be a part of our public education system.
In another case involving the interplay of public education and religion, with a decision expected in weeks, the Court will decide whether the First Amendment’s religious “free exercise clause” allows for parents to have their children opt out of instruction that they find to be objectional on religious grounds. That case is called Mahmoud v. Taylor and is expected to have wide ramifications on public education.
As always, please reach to our legal department with any specific legal questions and stay tuned.