The U.S. Supreme Court delivered an unexpected reprieve for church-state separation on May 22 when the justices failed to greenlight the nation’s first religious public school.
In a terse, two-sentence order, the justices acknowledged they’d deadlocked 4-4 in the case of Oklahoma Statewide Charter School Board v. Drummond. That means the Oklahoma Supreme Court’s June 2024 ruling will stand – St. Isidore of Seville Catholic Virtual School is unconstitutional and cannot operate as a public charter school.
“The Supreme Court’s stalemate safeguards public education and upholds the separation of church and state,” AU President and CEO Rachel Laser said in a media statement. “Charter schools are public schools that must be secular and serve all students. St. Isidore of Seville Catholic Virtual School, which planned to discriminate against students, families and staff and indoctrinate students into one religion, cannot operate as a public charter school. A religious public school would be an abject violation of religious freedom.”
The 4-4 tie was reached because Justice Amy Coney Barrett recused herself. As is typical for the justices, she did not disclose why, but court observers assume it was due to a conflict of interest with her connections to the University of Notre Dame. Barrett is a Notre Dame Law School alum, former professor and friend of Notre Dame law professor Nicole Stelle Garnett, an early adviser to St. Isidore.
Notre Dame’s Religious Liberty Clinic was one of three Christian Nationalist legal groups providing advice and legal support to St. Isidore. The others were Alliance Defending Freedom representing the Oklahoma Statewide Charter School Board and First Liberty Institute representing Oklahoma Superintendent of Public Instruction Ryan Walters, a member of the charter school board. Trump administration Solicitor General D. John Sauer also participated in oral arguments in support of St. Isidore.
The case before the Supreme Court was brought by Oklahoma’s Republican Attorney General Gentner Drummond, who called the decision “a resounding victory for religious liberty and for the foundational principles that have guided our nation since its founding.”
Drummond’s case was filed several months after the similar case filed by AU and allies at the American Civil Liberties Union, Education Law Center and Freedom From Religion Foundation on behalf of Oklahoma faith leaders, parents and public school advocates.
Because Drummond was able to file his case directly with the Oklahoma Supreme Court, it was fast-tracked while AU’s case was pending in a lower court. AU will be discussing next steps in its case with the clients and co-counsel.
AU recognizes that the U.S. Supreme Court’s decision was uncomfortably close and is at risk of being upended when Christian Nationalists inevitably try to bring another, similar case on religious public schools before the court.
Because the St. Isidore decision was issued as a “per curiam” opinion, no single justice is listed as the author and the court doesn’t disclose how each justice voted. Court watchers assume Chief Justice John Roberts joined the court’s three liberal justices in affirming that St. Isidore can’t be a religious public charter school, but that’s just an educated guess. The justices provided no analysis for why they ruled as they did — or any guarantee they’d rule the same way on a future, similar case.
What is known is that the six ultra-conservative justices have repeatedly demonstrated hostility toward church-state separation — an ideology we may see again in June as the court rules on two more cases involving religion, including one case in which the justices could pave the way for religious conservatives to censor public school curriculum.
“We will continue our efforts to protect inclusive public education,” Laser promised. “We call on this nation to recommit to church-state separation before this safeguard of democracy and freedom is further attacked.”