Liberal Supreme Court justices grill religious institution in landmark school choice case

The Supreme Court on Wednesday heard oral arguments in a case involving the nation’s first religious charter school, and whether it is eligible for state funding despite its religious teachings. 

At issue in the landmark case is a virtual Catholic charter school in Oklahoma, St. Isidore of Seville Catholic Virtual School, and whether the school is eligible to receive public funding because of its religious teachings. Lawyers representing the school have argued that it is operating like a private actor working under a contract with the state, and asked the high court on Wednesday to overturn an earlier decision by the Oklahoma Supreme Court.

During Wednesday’s arguments, lawyers for St. Isidore argued that just because they receive state funding does not mean they are a state actor. They also noted recent Supreme Court precedent, which they said has been in their favor.

This court has “repeatedly” held that “a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits,” James Campbell, an attorney arguing for the Oklahoma state school board on behalf of the religious charter schools, said Wednesday.

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The U.S. Supreme Court building (Anna Moneymaker/Getty Images)

The case pits two First Amendment protections against one another – the Establishment Clause, which prohibits state governments from favoring or endorsing one religion over another; and the Free Exercise Clause, which establishes the right of individuals to practice their religion freely and without government interference that unduly burdens them from doing so.

During oral arguments Wednesday, the justices focused on two major questions. The first is whether charter schools should be treated as public schools, which are considered extensions of the state, and therefore subject to the Establishment Cause and its ban establishing or endorsing a religion, or whether it should be considered a private entities or contractor.

If justices back St. Isidore’s argument that it should be considered as private entity, the second question is whether Oklahoma’s actions violate the Free Exercise Clause of the Constitution, by placing what the school argues is an undue burdens on its religious mission. 

Justice Ketanji Brown Jackson pressed St. Isidore attorney Michael McGinley ​​Wednesday on their contention that charter schools are being discriminated against under the Free Exercise Clause. 

Jackson noted that at the same time St. Isidore is arguing it is being discriminated against, it is also asking the court to grant it the ability that no one else has: which is to establish and operate a school in Oklahoma that is funded in part by the state.

“Now, in this case, St. Isidore doesn’t want to establish a secular school, which is what the public benefit is. Instead, they want to establish a religious school,” Jackson said. 

“So as I see it, it’s not being denied a benefit that everyone else gets. It’s being denied a benefit that no one else gets, which is the ability to establish a religious public school,” she added.

McGinley said in response that Oklahoma’s state-created charter school program can’t be limited to nonsectarian schools, since that would be a form of discrimination.  

“When you open a program to other private organizations, you can’t exclude the religious,” McGinley told the justices.

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Justice Sonia Sotomayor during the formal group photograph at the Supreme Court in Washington, D.C.,  on Oct. 7, 2022. (Eric Lee/Bloomberg via Getty Images)

Earlier, the justices pressed lawyers for St. Isidore on how they would treat individuals with different religious backgrounds at the school.

“What would you do with a charter school that doesn’t want to teach evolution, or it doesn’t want to teach history, including the history of slavery, or it doesn’t want to include having children of another faith in them, as this one does?” Justice Sonia Sotomayor asked Campbell. 

“This one does not say it won’t exclude children of other faiths. But it said, if you want to attend this school, you have to attend Mass. You have to accept the teachings of the church with respect to certain principles. So is that something you look at?”

In response, Campbell noted that the school does not require students to affirm its religious beliefs.

St. Isidore “allows exceptions for anyone that doesn’t want to attend Mass,” he said, and says “point-blank” in its handbook that there is no requirement that a student must affirm the beliefs of the school.

The Oklahoma Statewide Virtual Charter School Board approved St. Isidore’s contract request in June 2023, making them eligible to receive public funds.

But its ability to receive it was later blocked by the Oklahoma Supreme Court, which ruled that using public funds for the school was in violation of the Establishment Clause of the First Amendment. That argument was appealed to the Supreme Court, which agreed to hear the case last October.

Oklahoma Attorney General Gentner Drummond has argued that the school would be a state actor if it received state funding. “Charter schools no doubt offer important educational innovations, but they bear all the classic indicia of public schools,” Drummond argued in an earlier Supreme Court filing.

If its “charter-school law violates the Free Exercise Clause, then this is one of the most far-reaching free exercise violations in the nation’s history,” he argued.

Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)

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The court’s decision here could have wide-ranging ramifications far beyond Oklahoma, as at least 45 U.S. states currently authorize charter schools.

The charter school states on its site that it “fully embraces” the teachings of the Catholic Church, “fully incorporates” them “into every aspect” of the curriculum, and that it intends to participate “in the evangelizing mission of the church.” 

“No student will be compelled or placed in a charter school except by private choice,” McGinley told justices shortly before oral arguments concluded, noting that in contrast, “a ruling for us will only increase choice.”

Fox News’s Anders Hagstrom contributed to this report.