null / Credit: Wolfgang Schaller|Shutterstock

CNA Staff, Apr 30, 2025 / 17:13 pm (CNA).

During oral arguments on Wednesday, the conservative justices on the U.S. Supreme Court appeared sympathetic to supporting the establishment of the first Catholic charter school in the United States.

The St. Isidore of Seville Catholic Virtual School, which is managed by the Archdiocese of Oklahoma City and the Diocese of Tulsa and Eastern Oklahoma, last year petitioned the high court to approve its bid to become the nation’s first publicly funded religious charter school. The case could reshape school choice and religious freedom in the U.S. 

The Oklahoma Supreme Court previously ordered Oklahoma’s charter school board to rescind the contract with the school, citing the First Amendment’s prohibition of laws establishing a state religion. 

Shortly after the state Supreme Court ruling, both St. Isidore and the Oklahoma Statewide Charter School Board filed separate petitions to the U.S. Supreme Court in October 2024.

In the U.S. Supreme Court on Wednesday, James Campbell, chief counsel with the legal advocacy group Alliance Defending Freedom, argued on behalf of the Oklahoma charter board, while attorney Michael McGinley argued on behalf of St. Isidore’s. 

John Sauer, the solicitor general of the United States, argued in support of the school board and charter school. Gregory Garre, meanwhile, argued on behalf of Oklahoma Attorney General Gentner Drummond, who has opposed the creation of the school.

While the U.S. Supreme Court has a 6-3 conservative majority and has made several landmark decisions in support of religious freedom in recent years, Justice Amy Coney Barrett recused herself for the Oklahoma case. This leaves the possibility of a 4-4 split, in which the case would set no federal legal precedent and the state court ruling would remain in place. 

During the proceedings, the remaining five Republican-appointed justices expressed sympathy for the charter school, citing the importance of nondiscrimination and diverse options in education. 

Free exercise and diverse education options 

“You can’t treat religious people and religious institutions and religious speech as second class in the United States,” said Justice Brett Kavanaugh during the hearing.

He added that to have a program open to all private institutions except those that are religious “seems like rank discrimination.”

Justice Samuel Alito expressed concern about religious discrimination by the state, noting that the rejection of St. Isidore “seems to be motivated by hostility” toward particular religions. Alito pointed out that Drummond had made statements about Islamic schools in his reasoning for not allowing religious charter schools. 

In response to Garre’s arguments that charter schools were public institutions and should not support a particular religion, Kavanaugh maintained that charter schools were “built on the idea that innovative approaches to education would increase the quality of education” and provide various options for local communities. 

Chief Justice John Roberts asked skeptical questions of both sides. At one point, he compared the situation to a previous case in which the court ruled that a state program “couldn’t engage in that discrimination” against a religious adoption service in regards to funding. 

“How is that different from what we have here?” Roberts asked Garre. “You have an education program, and you want to not allow them to participate with a religious entity.”  

Justice Neil Gorsuch emphasized the same case, Fulton v. City of Philadelphia, asking Garre to define the difference between the two cases. 

Gorsuch also pointed out that state governments could potentially change the nature of their charter schools — making them publicly-run entities — if they wished to avoid funding religious charter schools. 

Conservative justices also pointed to the purpose of charter schools — to provide more accessible options for students. 

“I thought the whole point of charter schools was to offer something different from the so-called public schools,” Alito said.

Establishing no religion 

The three Democratic-appointed justices expressed concern about a religious charter school breaking the establishment clause, which prohibits the government from establishing a religion. 

During the discourse, the free exercise clause — which affirms the protection of the free exercise of religion without government interference — and the establishment clause appeared pitted against each other, Justice Sonia Sotomayor said.

Sotomayor expressed concerns that a religious charter school would break the establishment clause by teaching religion, implying that the free exercise clause “trumps” the establishment clause. 

“We’re not going to pay religious leaders to teach their religion,” she said in reference to the establishment clause. 

Justice Ketanji Brown Jackson expressed concerns that a Catholic charter school would be using state funding for “a religious purpose.” 

Sotomayor also expressed concerns that a religious school may teach creationism rather than evolution, citing the school board’s responsibility to ensure quality education. 

Justice Elena Kagan, meanwhile, asked what would happen if a school required a statement of faith to accept students. St. Isidore does not require a statement of faith, Campbell noted.

Jackson maintained that the charter school program required “strictly secular schools” and that religious schools were wanting a special “tailored contract.” 

“What they want to do is come in and get a contract that is tailored to their own terms that includes religious education,” Jackson said of St. Isidore. “The state says that’s not the benefit that we’re offering here.”

A decision will likely be issued by late June or early July.