Last week, the Supreme Court of the United States (SCOTUS) issued an evenly-split decision regarding the creation of religious charter schools. The case was initiated by St. Isidore of Seville Catholic Virtual School, which had been approved by the Oklahoma Statewide Charter School Board to become a charter school; but that approval was overridden by the Oklahoma Supreme Court because the school is religious. The school challenged the Court’s decision to deny its participation in the program on the basis of its religious basis. SCOTUS’ evenly-split decision was due to the fact that Justice Amy Coney Barrett had recused herself from the case due to a conflict of interest. The case now goes back to the Oklahoma Supreme Court, whose previous opinion stands, since SCOTUS did not overturn it.

In response to the decision, Alliance Defending Freedom Chief Legal Counsel Jim Campbell said, “Oklahoma parents and children are better off with more educational choices, not fewer. While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future. The U.S. Supreme Court has been clear that when the government creates programs and invites groups to participate, it can’t single out religious groups for exclusion, and we will continue our work to protect this vital freedom for parents and students. We remain proud of our clients, the Oklahoma Statewide Charter School Board, and their brave stand for educational freedom.”

An Issue of Religious Liberty

This case is groundbreaking due to the fact that there has never been a religious charter school in the history of America. SCOTUS did not answer the questions it was considering: (1) whether “…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;” and (2) “whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious.”

As Al Mohler said on his podcast The Briefing, “If you say that just about any organization can sponsor a charter school and then you say, but not that one when it comes to religion, religious expression, the free exercise of religion, if that one is covered by those constitutional rights and you have singled out religion in what’s called invidious discrimination and that at face value is discrimination, that should not stand.”

You can learn more about the background on this case in NC Family’s podcast interview with ADF attorney Phil Sechler.