On Thursday, the Supreme Court ruled that Oklahoma cannot allow the creation of a religious charter school. The deadlocked 4–4 ruling kept a lower court’s previous decision in place without explaining the justices’ rationale.
The case stems from a plan to allow the creation of a public Catholic charter school called St. Isidore of Seville Catholic Virtual School. While Oklahoma’s charter school board initially approved the school in 2023, the state’s attorney general asked the state Supreme Court to intervene.
Both sides made arguments that appeal to religious freedom. The state argued that it would violate the Establishment Clause to allow a religious school to receive public funds and operate as a public school. St. Isidore, on the other hand, argued that a ban on religious charter schools would essentially be religious discrimination. Charter schools are allowed to abide by a wide range of educational philosophies; therefore only targeting religious pedagogy is unfair.
Ultimately, the Oklahoma Supreme Court ruled in favor of the state. “What St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit,” reads the state Supreme Court’s 2024 opinion. “It is about the State’s creation and funding of a new religious institution violating the Establishment Clause.”
The case poses tough questions about under which circumstances the state can fund religious institutions—many states, for example, already allow parents to use public money to send their children to private religious schools through school choice programs. Unfortunately, the Court’s decision didn’t create much clarity. While the 4-4 decision leaves the state Supreme Court’s ruling in place, it did not include an explanation from the justices, nor did it reveal how they voted. (Justice Amy Coney Barrett recused herself, likely due to her affiliation with Notre Dame Law School, whose religious liberties legal clinic helped defend the charter school in the case.)
This most recent deadlock at the Supreme Court shows just how murky debates over where religious discrimination ends and religious establishment begins can be. “This is a rock-and-a-hard-place situation for the Supreme Court,” Neal McCluskey, associate director of the Cato Institute’s Center for Educational Freedom, wrote for Reason last month. “Rule against St. Isidore, and discrimination against religion wins. Rule for it, and dangerous government entanglement will ensue.”
