Supreme Court Test: Can St. Isidore Be a Religious Charter School?

Religious liberty is on a historic winning streak at the Supreme Court, and one side effect of this happy story is that the cases are getting trickier. Consider Wednesday’s argument in what could become a landmark case: Does a church have a First Amendment right to open a taxpayer-funded charter school? Or can a state exclude religious charter applicants in the name of secular public education?

That’s the dispute in Oklahoma Statewide Charter School Board v. Drummond, which concerns St. Isidore, an online school proposed by two Catholic dioceses. The state charter board approved its application. But the Oklahoma Supreme Court held that authorizing and funding a religious school would violate state law and the First Amendment’s promise of no “establishment of religion.”

St. Isidore and the state charter board invoke the First Amendment’s other religion clause, guaranteeing “free exercise,” and they cite recent High Court precedents. In Trinity Lutheran (2017), the Justices said Missouri couldn’t deny grant money for playground resurfacing to a church-run preschool. In Espinoza (2020) and Carson (2022), the Court said families given state money to attend private schools have a right to choose religious options.

As Chief Justice John Roberts wrote in Carson: “We have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Yet does this extend to an applicant seeking direct taxpayer funding to run a religious charter under state contract?

Read More…