(CNN) — The Supreme Court’s conservative majority on Wednesday seemed open to backing the creation of a Catholic charter school in Oklahoma, a decision that would expand the availability of taxpayer money for religious education in school systems across the nation.
During more than two hours of at times feisty arguments in one of the year’s most closely watched cases, the court’s conservative justices pressed an attorney opposed to the creation of St. Isidore of Seville Catholic Virtual School about how his position could be squared with a series of recent precedents that have eroded the proverbial wall that for decades separated church from state.
But Chief Justice John Roberts, who asked difficult questions of both sides, clearly emerged as a central figure who may wind up casting the deciding vote. Always important to watch, Roberts’ vote is particularly key here because one of the court’s six conservatives, Justice Amy Coney Barrett, recused herself in the case.
Justice Brett Kavanaugh, a conservative, suggested that opposition to the school looked like “rank discrimination against religion.”
“All the religious school is saying is, ‘Don’t exclude us on account of our religion,’” Kavanaugh said. “Our cases have made very clear — and I think those are some of the most important cases we’ve had — of saying you can’t treat religious people and religious institutions and religious speech as second class in the United States.”
Three of the court’s conservatives appeared to support the creation of the school, while the court’s three liberal justices seemed opposed to it. If Roberts sides with the liberal wing, it would create a 4-4 split that would leave in place a lower court’s ruling against the school.
Eyes on Roberts
Charter schools — privately run but publicly funded — serve 3.8 million students in the US, offering an alternative to traditional public schools that are intended to be more innovative and less bound by state regulations. The concept took off in the 1990s and, by the 2023 school year, there were some 8,000 charter schools operating nationwide.
Oklahoma law — as in most states — deems the schools to be public entities.
But the Supreme Court has decided a series of cases in recent years with a different frame: The government doesn’t have to open programs to private entities, it has said. But if it chooses to do so, it cannot exclude religious entities from taking part.
Key in the debate was a 2022 decision in which the court barred Maine from excluding religious schools from a public tuition assistance program that allows parents to use vouchers to send their children to public or private schools. In a 6-3 decision written by Roberts, the court held that excluding religious schools from the tuition program violated the First Amendment’s free exercise clause.
In a striking moment during the arguments Wednesday, Roberts appeared to question whether that decision was applicable to the current case. In Maine, he suggested, the state didn’t have much of a role other than distributing the money. But in Oklahoma, he said, the state is heavily involved in regulating the day-to-day functioning of charter schools.
Those other cases, Roberts said, involved “fairly discrete” state involvement. “This does strike me as a much more comprehensive involvement” by the state in how charter schools operate, Roberts said. “And I wonder what case do you think supports the position with respect to that level of involvement.”
But later, the chief justice seemed particularly concerned that opposition to the school conflicted with a different decision, handed down in 2021, in which, the court ruled in favor of a Catholic foster care agency that was operating under on a contract with the city of Philadelphia and that refused to work with same-sex couples as potential foster parents.
“How is that different from what we have here?” Roberts asked the attorney opposed to the school. “You have an education program and you want to not allow them to participate with a religious entity.”
Roberts then walked through a series of decisions in which he suggested the court had looked at other programs that were a “creation” of the state and noted that in all of those cases “we held that under the First Amendment you couldn’t exclude people because of their religious beliefs.”
Public or private?
A ruling for St. Isidore could effectively redefine charter schools as private entities, even though most state laws — including Oklahoma’s — deem them to be public schools. That could open the door to other religious charter schools applying for funding, critics say, or it could prompt some states to restrict the schools or abandon them altogether.
That was a point Justice Neil Gorsuch focused on, asking an attorney supporting the school whether he had considered the “boomerang effect for charter schools.”
D. John Sauer, making his first appearance at the podium since being confirmed as solicitor general, argued in support of the school on behalf of the Trump administration. He faced a series of difficult questions from the liberal wing of the court about an acknowledged change in position from the Biden administration.
Two years ago, the Supreme Court left in place a lower court’s opinion that invalidated a code of conduct at a North Carolina publicly funded charter school that required girls to wear skirts in order to “preserve chivalry.” In that case, the Biden administration concluded that the charter school involved was a state actor.
“What changed?” Justice Sonia Sotomayor pressed Sauer.
“What changed,” she added, answering her own question, “is there’s a new administration.”
After the school was approved by a state charter school board, Oklahoma Attorney General Gentner Drummond, a Republican, sued to block its creation.
Oklahoma’s top court sided with Drummond last year.
“The expenditure of state funds for St. Isidore’s operations constitutes the use of state funds for the benefit and support of the Catholic church,” the court said in its opinion. Allowing the school, it said, “would create a slippery slope and what the framers’ warned against — the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
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