Did you need to hear the oral arguments to know the likely outcome in Oklahoma Statewide Virtual Charter School v Drummond?

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Yesterday morning, the Supreme Court considered whether the state of Oklahoma was required to approve and fully fund a Catholic charter school in its charter school program. Unfortunately, but not surprisingly, the answer may well be yes. With Justice Barrett recused, it all depends on whether Chief Justice Roberts joins the four other conservatives.  

The case started when Oklahoma’s Charter School Board voted 3-2 to approve St. Isidore, a Catholic charter school—a school that intended to incorporate Catholicism into every aspect of the school. That decision was eventually reversed by the Oklahoma Supreme Court. Its ruling is now under review.

Just to be clear, the question before the Supreme Court was not whether the State of Oklahoma is constitutionally allowed to use taxpayer dollars to directly and wholly fund a Catholic charter school given the Establishment Clause, which has long barred direct government funding of religious proselytization and education. Rather, the question is whether Oklahoma’s refusal to fund the St. Isadore violates the school’s Free Exercise Clause rights.

Why would deciding not to subsidize religious schools be unconstitutional? Precedent. There are three recent Supreme Court decisions that say if a state makes grants or funding available to private secular schools, it has to make those grants and funding equally available to private religious schools. Otherwise, according to a Roberts Court studiously ignoring the Establishment Clause, the denial amounts to religious discrimination and violates the private school’s free exercise rights.

(This is a very having-their-cake-and-eating-it-too approach: the Roberts Court ensures that Christian schools get all of the benefits of being a religious school—including the exemption from anti-discrimination law under the ministerial exemption—while virtually eliminating all the previous limits imposed by the Establishment Clause.)

Notably, all those cases involved private religious schools. Indeed, in the most recent of the trio, Carson v. Makin, the Roberts Court reaffirmed the principle that states could keep public schools completely secular (how generous of the Justices): “Maine may provide a strictly secular education in its public schools.”

Consequently, a crucial question was whether charter schools like St. Isadore are private or whether they are public, either because the schools are a government entity or because they are state actors.

There are plenty of reasons to characterize the charter schools created by Oklahoma law as public schools.  The public has long considered them public schools. The congressional law authorizing charter schools deemed them to be public schools. The charter schools are created by the state and can be terminated by the state. They have the hallmarks of public school: they are free, open to all, and entirely funded by the state, with the curriculum subject to detailed state regulations, including, apparently, teaching about dangling modifiers. And perhaps most important, the Oklahoma Supreme Court, which is supposed to be the final authority on interpreting Oklahoma state law, interpreted its Oklahoma state law to find that the charter schools are public schools.

Neither federalism nor facts nor precedent may ultimately matter to a Supreme Court keen to find discrimination against Christians whenever Christians do not get everything they want. They would much rather focus on the potential anti-Catholic hostility of the Oklahoma Constitution’s no-aid provision than the fact that religious private schools are perfectly free to participate in the state’s voucher school system, just like all other private schools. Various Justices floated reasons why charter schools could be considered  private, like Justice Thomas suggesting that the state board authorizing charter schools is no different than the accrediting board greenlighting private schools.

Of course, even if charter schools are private, there is still the pesky problem of the Establishment Clause’s ban on direct government funding of religious indoctrination. This is one line even the Roberts Court has not crossed. At least not yet. As Justice Sotomayor mused, “I thought the essence of the Establishment Clause is that the government cannot directly pay for religious leaders to teach their religion. Do you agree?” [not an exact quote!]. The attorney did not, arguing that Zelman v. Simmons-Harris made clear there is no Establishment Clause issue.

Zelman v. Simmons-Harris, however, is not analogous.  Among other things, Zelman was not a direct funding case.  Instead, parents were given vouchers, which they could give to the private school of their choice within the voucher program. Because the voucher funding ended up at the private religious schools due to the genuine and independent choice of the parents, any funding of religious leaders or religious indoctrination was attributed to the parents rather than the government. Here, it is the state that is directly approving and funding the religious schools.

In short, a victory for St. Isadore will erase one of the very last Establishment Clause restrictions on government funding: the ban on direct funding of religious indoctrination.  That evidence of this prohibition dates to the Founding will probably not appear in the Court’s decision, as it once again avoids inconvenient history and tradition.  And while the Court in theory agrees that the Establishment Clause prevents states from intentionally favoring some religions over others, the reality is that most religious charter schools will be Christian, just like most religious voucher schools are. The United States will have a network of Christian schools, fully funded by American taxpayers.

--Caroline Mala Corbin