SCOTUS Split 4-4 Over Publicly Funded Religious Schools

On May 22, 2025, the U.S. Supreme Court issued a significant decision in Oklahoma Statewide Charter School Board v. Drummond (consolidated with St. Isidore of Seville Catholic Virtual School v. Drummond), affirming the Oklahoma Supreme Court's ruling against publicly funding religious charter schools. This case has sparked debate over the intersection of religious freedom, public education, and constitutional law. Below is a comprehensive analysis of the case, its background, legal issues, decision, and broader implications, drawing from multiple reliable sources including legal blogs, news outlets, and encyclopedic entries.

Case Background and Context

The dispute originated in June 2023 when the Oklahoma Statewide Virtual Charter School Board voted 3-2 to approve St. Isidore of Seville Catholic Virtual School as a charter school, which would receive public funding while incorporating Catholic teachings. Oklahoma Attorney General Gentner Drummond, a Republican, challenged this decision, filing suit in the Oklahoma Supreme Court. Drummond argued that funding a religious school violated both the Oklahoma Constitution, which prohibits public funding for religious institutions, and the U.S. Constitution's Establishment Clause, which prevents government endorsement of religion. He also raised concerns about potential federal funding risks for public schools.

The Oklahoma Supreme Court heard oral arguments in April 2024 and ruled 6-2 in June 2024 that establishing St. Isidore violated both state and federal law, affirming that charter schools, as public entities, must remain secular. This decision led to the U.S. Supreme Court granting certiorari in January 2025, scheduling the case for the October 2024 term, with arguments held on April 30, 2025.

Legal Issues at Stake

The case presented two central constitutional questions:

1. Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.

2. Whether a state violates the First Amendment's Free Exercise Clause by excluding privately run religious schools from its charter-school program solely because they are religious, or if the state can justify such exclusion based on anti-establishment interests that go beyond the Establishment Clause's requirements.

These issues highlight the tension between the Free Exercise Clause, which protects religious practice, and the Establishment Clause, which prohibits government endorsement of religion. The case also intersects with federal and state laws governing charter schools, which are required to be "public" and "nonsectarian" under a 1994 federal law disbursing billions to such programs.

Oklahoma Supreme Court Opinion

The affirmed opinion from the Oklahoma Supreme Court, decided on June 25, 2024, offers detailed reasoning for its ruling. The court assumed original jurisdiction under the publici juris doctrine, finding the issue warranted immediate judicial determination. Key points include:

• Oklahoma Constitution (Article 2, Section 5): This provision prohibits the use of public money or property for the benefit or support of any sect, church, denomination, or system of religion. The court found that funding St. Isidore, a sectarian institution, would violate this, as it would support the Catholic Church's evangelizing mission. The court cited Prescott v. Oklahoma Capitol Preservation Commission (2015), emphasizing the framers' intent for a complete separation of church and state to protect religious freedom without governmental intervention.

• Oklahoma Charter Schools Act: Enacted in 1999, the Act requires charter schools to be nonsectarian in their programs, admission policies, and operations. St. Isidore's contract deviated from the standard model, allowing it to operate as a religious school, which the court found violated the Act and the Oklahoma Constitution (Article 1, Section 5), mandating nonsectarian public schools.

• State Actor Status: The court determined St. Isidore is a governmental entity and state actor, as charter schools are public schools created by state law, receiving public funding, and subject to state oversight. This was supported by comparing charter schools to traditional public schools in terms of funding, legal requirements, and operations, and citing cases like Peltier v. Charter Day School, Inc. (4th Cir. 2022), which found charter schools to be state actors performing a public function.

• Establishment Clause: The court held that funding St. Isidore violated the federal Establishment Clause, as it would involve state spending in direct support of religious activities, citing Everson v. Board of Education (1947) and cases like Kennedy v. Bremerton School District (2022), which prohibit public schools from requiring religious participation.

• Free Exercise Clause: The court distinguished recent precedents like Carson v. Makin (2022), Espinoza v. Montana Department of Revenue (2020), and Trinity Lutheran Church v. Comer (2017), noting St. Isidore is a state-created entity, not a private religious organization seeking equal treatment. Thus, the Free Exercise Clause was not implicated, and compliance with the Establishment Clause was a compelling governmental interest.

The court granted Drummond's request for a writ of mandamus and declaratory relief, directing the Charter School Board to rescind the St. Isidore Contract, finding it unconstitutional under both state and federal law.

U.S. Supreme Court Decision

On May 22, 2025, the U.S. Supreme Court issued a 4-4 decision, affirming the Oklahoma Supreme Court's ruling without setting a nationwide precedent. This tie vote occurred because Justice Amy Coney Barrett recused herself from the case. While no official reason was given, news reports suggest her recusal was likely due to her 15-year tenure teaching at the University of Notre Dame, whose religious liberty clinic represented St. Isidore, and a close friend's involvement with the school. The 4-4 split means the lower court's decision stands for Oklahoma, prohibiting taxpayer funding for St. Isidore, but it does not resolve the constitutional question nationally, leaving it open for future litigation. The lack of a majority opinion also means there is no detailed reasoning from the Court, but the tie vote reflects the complexity and divisiveness of the issue.

During oral arguments on April 30, 2025, two main perspectives emerged:

• Supporters of Religious Charter Schools: Argued that excluding religious schools from charter programs constitutes unconstitutional discrimination against religion, citing recent Supreme Court decisions like Carson v. Makin (2022). They contended that charter schools, while publicly funded, can be operated by private entities, including religious ones, without violating the Establishment Clause. Justices Thomas, Alito, Kavanaugh, and Gorsuch seemed inclined to support this view.

• Opponents, Led by Drummond: Argued that charter schools are public schools and must remain secular, as required by federal law and many state constitutions. They emphasized that funding religious education with public money violates the Establishment Clause and could strain resources for non-religious charter schools. Justices Sotomayor, Kagan, and Jackson leaned toward this position, with Chief Justice Roberts viewed as a potential swing vote.

Drummond also warned during the case that approving St. Isidore could force Oklahoma to fund schools associated with radical Islam or the Church of Satan, illustrating the slippery slope argument against religious charter schools.

Procedural History and Key Dates

The procedural timeline includes:

• Petition for writ of certiorari filed on October 7, 2024, with responses due November 8, 2024, extended to December 9, 2024.

• Certiorari granted on January 24, 2025, consolidating cases for a one-hour oral argument on April 30, 2025.

• Briefs on the merits filed by petitioners by March 5, 2025, and by respondent Drummond by March 31, 2025, with replies due April 21, 2025.

• The case record was requested from the Oklahoma Supreme Court on March 3, 2025, and received on March 19, 2025.

Multiple amicus briefs were filed, reflecting the case's significance. Notable filers include the Manhattan Institute, the United States & Trump Administration, the Wisconsin Institute for Law & Liberty, and the National Alliance for Public Charter Schools. These briefs underscore the diverse stakeholders, including religious liberty advocates, education policy groups, and state governments.

Implications and Broader Impact

The decision has significant implications for education policy and constitutional law:

• State and Federal Law: It affects charter school laws in 46 states and a federal law since 1994, which disburses billions to charter schools but requires them to be "public" and "nonsectarian." The ruling reinforces that states can maintain secular public school systems without funding religious education, but it leaves open whether exclusion violates the Free Exercise Clause.

• Funding Strains: Opponents argue the decision could exacerbate funding issues for non-religious charter schools, which compete with public schools for students and resources. With declining birth rates, this competition may intensify, potentially leading to closures or reduced services.

• National Debate: The lack of a nationwide precedent means the debate over religious charter schools continues. States may interpret their laws differently, with some potentially challenging similar exclusions in future cases. This could lead to further Supreme Court review, especially given the Court's recent trend of expanding religious rights.

The case also highlights the ongoing tension between church and state, a sensitive issue with deep historical and cultural roots. Supporters see it as a matter of religious freedom, while opponents view it as essential for maintaining secular public education, reflecting the broader controversy over school choice and funding.

Stakeholder Reactions and Related Lawsuits

• Supporters: The Trump administration, Oklahoma Governor Kevin Stitt, and groups like the Liberty Justice Center supported St. Isidore, arguing for equal treatment of religious schools. A December 2022 memo by John M. O'Connor and Zach West, backed by Stitt, claimed Oklahoma's law barring nonsecular charter schools was unconstitutional.

• Opponents: The ACLU, Americans United for Separation of Church and State, Education Law Center, and Freedom From Religion Foundation opposed the school, filing a related lawsuit, OKPLAC, Inc. v. Statewide Virtual Charter School Board, on July 31, 2023. After the Oklahoma Supreme Court's ruling, a court-approved agreement held the case until at least February 1, 2025, with St. Isidore agreeing not to accept funding or open as a charter school during 2024-25. They argued charter schools must be secular, warning of potential discrimination based on religion or LGBTQ+ status and inadequate service for students with disabilities.

Notable Aspects and Context

• Justice Barrett's recusal was pivotal, as her participation could have tipped the balance. Her connection to Notre Dame, a Catholic institution, raised conflict-of-interest concerns, and news reports noted her close friend's involvement with St. Isidore.

• The case attracted significant attention, with amicus briefs from diverse groups, including the Trump administration and Oklahoma Governor Kevin Stitt supporting the school, while organizations like Americans United for Separation of Church and State opposed it.

• The decision aligns with recent Supreme Court trends on religious liberty, such as Carson v. Makin, but the tie vote suggests internal division among the justices on applying these precedents to charter schools.

Oklahoma Statewide Charter School Board v. Drummond is a landmark case that underscores the complexities of balancing religious freedom with the separation of church and state in public education. The Supreme Court's 4-4 decision on May 22, 2025, upholds Oklahoma's prohibition on funding religious charter schools, but leaves national questions unresolved. It impacts charter school policies across the U.S., with potential ramifications for funding, student choice, and constitutional interpretation. As the debate continues, this case will likely influence future litigation and policy discussions on the role of religion in public education.

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