At issue is whether providing public money to a faith-based educational institution violates the First Amendment's separation of church and state. (iStock)
The appeal comes amid a renewed pitch in some Republican-led states to bring a greater religious presence to public education.
The conservative high court in recent years has, in select cases, allowed taxpayer funds to be spent on religious organizations to provide "non-sectarian services" like adoption or food banks.
In the courtroom public session, the justices debated what limits on curriculum supervision and control would be placed on the religious charter school, if its contract with the state was allowed to move forward.
"Our [prior] cases have made very clear," said Justice Brett Kavanaugh. "You can't treat religious people and religious institutions and religious speech as second class in the United States. And when you have a program that's open to all comers except religion, no, we can't do that. We can do everything else. That seems like rank discrimination against religion. And that's the concern."
Justice Amy Coney Barrett was not on the bench and is recused in the case. (Getty Images)
The vote of Chief Justice John Roberts may be key. He asked tough questions of both sides.
At one point, Roberts noted of the current dispute: "This does strike me as a much more comprehensive involvement," by the state than prior cases dealing with "fairly discrete" public money going to religious groups, such as tax breaks and private school tuition credits.
In an unusual split within the Oklahoma government, the state's governor, head of public education, and the statewide charter school board are all backing St. Isidore.
But Attorney General Gentner Drummond sued to block the approval of the school's state charter, calling it an "unlawful sponsorship" of a sectarian institution, and "a serious threat to the religious liberty of all four-million Oklahomans."
He has the backing of some GOP state lawmakers and parents' groups, who argue that funding parochial charter schools would drain resources from public education – especially in rural areas already struggling with limited funding.
When it signed a contract with the state charter school board in 2023, St. Isidore – formed as a nonprofit corporation by the Archdiocese of Oklahoma City and the Diocese of Tulsa – agreed it would be free and open to all students "as a traditional public school," and would comply with local, state and federal education laws.
The U.S. Supreme Court, Nov. 15, 2023, in Washington, D.C. (AP Photo/Mariam Zuhaib, File)
The distinction is important, since charter schools in Oklahoma are considered public, free and openly accessible to all. That is true in the 46 states – plus the District of Columbia – where charter schools operate.
The Supreme Court has previously said states may require public schools be secular, but also cannot prevent private religious institutions from public benefits and contracts.
The issue now is whether those precedents apply to charter schools.
Justice Ketanji Brown Jackson said charter schools are "a creation and creature of the state."
Justice Elena Kagan said contracts signed by schools like St. Isidore have basic requirements to meet state classroom standards, with state oversight.
"I've just got to think that there are religions that are going to have no problems dealing with all the various curricular requirements and religions that are going to have very severe problems dealing with all the curricular requirement," she said.
"I'm suggesting to you is this notion that the state can do this while still maintaining all its various curricular requirements. I mean, either that sort of fantasy land, given the state of religious belief and religious practice in this world or if it's not, it's only because what's going to result is treating, shall we call them majoritarian, religions very differently from minority religions," said Kagan.
But Justice Clarence Thomas noted: "The argument that St. Isidore and the board are making is that it's a private entity that is participating in a state [charter] program. It was not created by the state program."
Justice Clarence Thomas (Jonathan Newton/The Washington Post via Getty Images)
Justice Samuel Alito was more pointed, telling Gregory Garre, lawyer for the state, "This whole position that you're defending seems to be motivated by hostility toward particular religions."
Department of Education figures show about 4m illion schoolchildren – or 8% of the total – are enrolled in an estimated 7,800 charter schools, which operate with greater independence and autonomy than traditional public schools. Oklahoma has more than 30 public charter schools serving about 50,000 students.
Last June, Oklahoma's top education official separately mandated the Bible be incorporated into lesson plans for grades 5-12, and the Holy Scripture be placed in every classroom. And in Louisiana, there is a requirement that the Ten Commandments be posted on public school property. Both policies are facing legal challenges.
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Six members of the current Supreme Court attended Catholic schools in their youth, and many of their own children attend or attended private schools, including religious-based institutions of learning.
The consolidated cases are Oklahoma Statewide Charter School Board v. Drummond (AG OK) (24-394) and St. Isidore of Seville Catholic Virtual School v. Drummond (AG OK) (24-396).
A ruling is expected by early summer.
Shannon Bream currently serves as anchor of FOX News Sunday. She joined the network in 2007 as a Washington D.C- based correspondent covering the Supreme Court.
https://www.foxnews.com/politics/supreme-court-weighs-religious-liberty-dispute-over-public-funding-catholic-charter-school