Supreme Court Signals Divide on Religious Charter Schools (1)

US Supreme Court justices signaled a deep divide over a bid to create the nation’s first publicly funded religious charter school in a case that could lift longstanding constitutional limits on governmental support for faith.

In an argument that stretched more than two hours, Chief Justice John Roberts emerged as a pivotal vote. Though he didn’t clearly tip his hand, Roberts indicated he was skeptical of at least some contentions being made by a lawyer defending the exclusion of religious schools from Oklahoma’s program.

Four other conservative justices suggested they were poised to say that states are unconstitutionally disfavoring religion by requiring their public charter schools to be secular. Justice Brett Kavanaugh said Oklahoma’s exclusion of St. Isidore of Seville Catholic Virtual School “seems like rank discrimination against religion.”

The court’s liberal justices made clear they read the Constitution as letting states set up a system of public secular schools — including some that are run by outside organizations as charter schools — without having to pay for religious education.

“What would you do with a charter school that doesn’t want to teach evolution?” Justice Sonia Sotomayor asked a lawyer backing St. Isidore’s creation. “Or doesn’t want to teach history, including the history of slavery, or doesn’t want to include having children of another faith in them?”

Read More: Supreme Court Case Is Vital for Future of Charter-School Funding

The case threatens to upend charter-school systems across the country, affecting laws in as many as 46 states as well as the operation of a federal law that has dispersed billions of dollars to programs since 1994. The federal law says charter schools must be both “public” and “nonsectarian,” and many state laws have similar language.

Schools across the US are already under pressure as they contend with a shrinking pool of students because of a declining birth rate. Opponents say a decision backing St. Isidore would exacerbate challenges for charter schools, which compete with public schools for students and funding.

No Barrett

The Supreme Court’s conservative majority has repeatedly sided with religious interests in recent years. Roberts pointed to a 2021 ruling that said Philadelphia violated the Constitution when officials excluded a Catholic charity from part of the city’s foster-care program.

“How is that different from what we have here?” Roberts asked a lawyer challenging St. Isidore’s creation. “You have an education program, and you want to not allow them to participate with a religious entity.”

But at a different point, Roberts distinguished the Oklahoma clash from past cases, including a 2022 decision that said religious schools couldn’t be excluded from state programs that help pay for private education. He said authorizing religious charter schools would mean “much more comprehensive involvement” with religious education by the government.

Roberts wrote in the the 2022 ruling that Maine, the state at the center of the case, “may provide a strictly secular education in its public schools.”

Justice Amy Coney Barrett isn’t taking part in the case. Barrett disqualified herself in January, and while she didn’t say why it’s possibly because of her close friendship with a University of Notre Dame law professor who has advised the school. Her recusal creates the prospect of a 4-4 split, an outcome that wouldn’t set a nationwide precedent but would uphold an Oklahoma Supreme Court decision blocking St. Isidore’s creation.

Kavanaugh was the most blunt of the court’s conservatives in staking out his position.

“You can’t treat religious people and religious institutions and religious speech as second class in the United States,” he said. “And when you have a program that’s open to all comers except religion — ‘No, we can’t do that. We can do everything else.’ — that seems like rank discrimination against religion.”

Justice Elena Kagan said St. Isidore’s arguments would require New York to fund a hypothetical Hasidic charter school that focused on the Talmud and conducted classes mostly in Hebrew.

“This is what this community thinks is critically important to train their young people in the tenets of their religious practice,” she said.

The court is scheduled to rule by July in the case, Oklahoma Statewide Charter School Board v. Drummond, 24-394.

--With assistance from Erin Hudson.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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