Hearing St. Isidore case arguments, SCOTUS ponders whether charter schools are public schools

Hearing a case today that would have major ramifications across the country, U.S. Supreme Court justices spent two hours weighing arguments about whether a proposed Catholic charter school in Oklahoma would violate constitutional parameters regarding public funding and religion.

During about two hours of arguments Wednesday morning, justices peppered attorneys representing Oklahoma Attorney General Gentner Drummond, St. Isidore of Seville Catholic Virtual School and the Statewide Charter School Board with questions about whether charter schools are public schools and if prohibitions against religious charter schools constitute discrimination.

Justice Amy Coney Barrett, a devout Catholic with a history tied to religious freedom initiatives at Notre Dame Law School, recused from the case. The other eight justices seemed split on the topic.

“This case is ultimately about safeguarding religious liberty. Religious liberty means every citizen is free to worship as he or she sees fit. It does not mean the government should back religious indoctrination,” Drummond said in a press release after the hearing. “The justices were clearly engaged. Their questions were robust and meaningful.”

On Tuesday, Drummond spoke with NonDoc about the case. He referenced the two clauses of the First Amendment that concern religion: the establishment clause and the free exercise clause.

“If we, the state, are offering a generally available benefit, and excluding an entity because it’s religious, that’s against the law. And I 100 percent endorse that and embrace that,” Drummond said. “This is not that. Those are state action doctrine cases. This is an establishment clause case — night and day different.”

Drummond did not argue the case himself Wednesday, instead relying on Gregory Garre, a Washington-based attorney who served as solicitor general for the U.S. under President George W. Bush.

During the hearing, Garre answered a barrage of questions from the justices, defending Drummond’s position to Brett Kavanaugh and Samuel Alito while answering friendlier questions from Katanji Brown Jackson, Sonya Sotomayor and Elena Kagan. Chief Justice John Roberts, as well as Justices Clarence Thomas and Neil Gorsuch, were less overt with their questioning.

Charter schools are typically considered public schools but can be run by private management organizations. They are not allowed to charge tuition and receive state funds. Currently, Oklahoma and federal laws require charter schools to be “nonsectarian,” meaning they cannot be religiously affiliated and cannot proselytize.

The case of St. Isidore has pitted Drummond against other elected officials in his own party. Gov. Kevin Stitt attended Wednesday’s hearing to show support for the proposed school, which the Oklahoma Supreme Court ruled in June 2024 violates both state and federal constitutions.

“You cannot discriminate (against) someone just based on their faith, and that’s basically what our state Supreme Court tried to do, and what our attorney general is trying to argue,” Stitt said after the hearing, adding that he feels confident the U.S. Supreme Court will side with St. Isidore.

Drummond, who announced his campaign for governor in January, had a different take.

“The proponents — the governor, superintendent of public education and the petitioners — would have you stand on your left foot, twist your head to the right, squint real hard, look off on the horizon and create an apparition that doesn’t exist unless we change the laws,” Drummond said Tuesday.

Although he seems to be Oklahoma’s lone statewide elected official opposing the school, Drummond said he felt he was defending Oklahoma and federal law.

“I took an oath of office that I take seriously, and I’m a lawyer, therefore I’m informed in the law. It’s not convenient for me to ignore the law,” Drummond said. “Other elected officials, they have exculpatory situations where they can ignore the law.”

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