While advocates of religious education may be frustrated with the U.S. Supreme Court’s recent deadlock in St. Isidore of Seville Catholic Virtual School v. Drummond, they may have dodged a bullet.
St. Isidore is a Catholic virtual school that applied to become a charter school in Oklahoma. The state denied the application because the school sought to engage in religious instruction. The Establishment Clause of the First Amendment to the Constitution says that public entities cannot be religious. Charter schools historically have been seen as public schools. So, Oklahoma’s argument goes, they cannot be religious.
But St. Isidore responded that if charter schools are in fact private entities operating under contract with the state, then Oklahoma discriminated against it on religious grounds by denying its charter application. When government funds flow to private entities through public grants, contracts, or school choice programs, the state cannot exclude certain private recipients just for being religious. The court affirmed this principle in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and a host of cases since.
Therein lies the rub. If a charter school is a private entity that merely accepts public funds as it might with vouchers, then the Constitution would not allow states to block religious charter schools. However, if a charter school were a public school in the sense that it was an arm of the government, Oklahoma may have been correct in blocking its application. That was the crux of the case.
Instead of ruling on the merits of the dispute, the Supreme Court deadlocked 4-4. Justice Amy Coney Barrett recused herself from the case, likely because of her connection to some of the attorneys arguing the case. When the court divides evenly like this, it affirms the lower court’s decision without an opinion and without setting any precedent. This means the Oklahoma Supreme Court’s decision stands, siding with Oklahoma against St. Isidore.
A decision the other way could have had profound consequences. According to the Education Commission of the States, 45 states and the District of Columbia have charter school laws. A ruling in favor of St. Isidore could have reshaped public education in nearly all of them.
Some states’ reactions to a win for religious charters could have set back educational liberty for decades. Historically, liberal enclaves that supported charter schools often did so for social justice reasons: to offer better options to disadvantaged students. Many found citizen support for charter laws because the schools were nonreligious. In addition, states such as New York and Massachusetts, typically less friendly to educational liberty, have long imposed caps on the number of charters that can operate.
If charter schools were allowed to be religious schools, whatever limited liberal support remained might evaporate, triggering a new wave of charter school caps, regulatory crackdowns, and even the repeal of charter laws in some blue states. Ironically, a victory for religious liberty could have killed educational liberty.
But even the victory for religious liberty that a St. Isidore win would have represented may have been short-lived. For years, what made private schools distinct was their ability to teach faith openly. Before charters came along, private schools and homeschooling were the primary competitors with local public schools. Charter schools changed that. Suddenly, there was a free, nonreligious alternative. The entrance of charters was particularly hard on urban Catholic schools, which long had served non-Catholics. If charter schools could now be religious and tuition-free, many private religious schools might be driven out of existence.
Moreover, an outright win for St. Isidore would have meant that religious charter schools are public. For some states, that could have meant that such schools would have to comply with government regulations. St. Isidore was fully willing to do this. But other religious schools, in the bargain to obtain a charter, may have felt forced to give up the very autonomy that makes private religious schools distinctive. A win for St. Isidore might eventually have turned religious education into a government-regulated enterprise.
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This is not to say that religious schools should be boxed out from public benefits — far from it. As previous rulings have indicated, private religious schools should be allowed to compete wherever public benefits are available and protected from discrimination based on their religious status.
Religious liberty advocates may see the split decision in St. Isidore v. Drummond to uphold the lower court’s rejection of St. Isidore’s charter as a loss. But there is a silver lining. Charter schools may actually be a poor and unsustainable vehicle for religious education. Programs such as vouchers, tax-credit scholarships, and education savings accounts achieve the same goal — empowering parents to choose faith-based schools — without dragging religion under the umbrella of government regulation.
Ryan Owens, J.D., Ph.D., is the director of the Institute for Governance and Civics at Florida State University. James V. Shuls, Ph.D., is the head of education liberty at the IGC.