The Unconstitutional Ban on Religious Charter Schools

On May 22, the Supreme Court let stand, by a divided vote and without opinion, a decision of the Oklahoma Supreme Court blocking what would have been the nation’s first religious charter school. The school, St. Isidore of Seville Catholic Virtual School, is a joint project of the Archdiocese of Oklahoma City and the Diocese of Tulsa. It sought to participate in Oklahoma’s charter school program in order to deliver a high-quality virtual Catholic education across the large rural state, where many children lack access to brick-and-mortar Catholic schools. The Court’s decision has no precedential weight, and the question presented in the case—whether laws prohibiting religious charter schools violate the First Amendment’s Free Exercise Clause—will undoubtedly be relitigated in the months and years ahead. 

Much ink has been spilled about the St. Isidore case, including by me. In 2023, the state’s charter school board entered into a contract with St. Isidore after concluding that provisions of Oklahoma law prohibiting charter schools from being religiously affiliated and requiring them to be secular violate the First Amendment’s Free Exercise Clause. The board was right to do so. In a series of recent decisions, the Supreme Court has made clear that, when the government creates public programs that invite private organizations to advance public goals like education, the First Amendment requires it to extend the invitation to secular and religious organizations alike. Despite the overheated rhetoric suggesting that reversing the Oklahoma Supreme Court’s decision would remove the last brick in the proverbial wall separating church and state, the question before the Supreme Court involved a straightforward application of that nondiscrimination principle.

Charter school programs are designed to foster educational innovation and expand opportunity. They enlist private organizations to operate publicly funded schools that have substantial autonomy to operate free from the regulations governing traditional public schools. Although they are nominally designated “public schools” in state laws, they are—in contrast to traditional public schools—privately operated. St. Isidore argued that, as a private religious entity, the ruling blocking it from operating as a charter school amounted to unconstitutional religious discrimination. The Court was asked to answer one question, and only one: Was St. Isidore a private actor, in which case the Oklahoma Supreme Court could not require it to be a secular school, or a government actor, in which case it must? At argument, a majority of the sitting justices—Justice Barrett recused—seemed to believe that St. Isidore had the better of that argument. And for good reason. It beggars belief that a Catholic school operated by two dioceses became a government entity by virtue of a contract with the state’s charter school board.

We will never know why one of the conservative justices voted to affirm the Oklahoma Supreme Court’s wrongheaded decision. Perhaps the decision was a prudential one, given the intensity of focus on the case and its ramifications for all forty-seven states with charter school laws. But the decision to kick the proverbial can down the road was not a “no harm, no foul” move. The deadlock left in place a pervasive practice of religious discrimination in state charter school programs, all of which prohibit religious charter schools. And this discrimination has real-world consequences. St. Isidore—and other religious organizations that would, if permitted, apply to open charter schools—remains subject to unconstitutional religious discrimination. And the children of Oklahoma—over two hundred of whom had enrolled in St. Isidore before the Oklahoma Supreme Court ordered the charter board to revoke its contract—remain without access to new, innovative educational options. 

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