In the cases of Oklahoma Statewide Virtual Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, Supreme Court Justice Amy Coney Barrett recused herself, leading to a deadlock on whether the Catholic Church could establish the country’s first religious charter school.
The Supreme Court’s recent 4-4 decision muted the Court at a time when its majority judgment was critical to resolving the current battle over the separation of church and state.
In 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa, who run Catholic schools, decided to see how far the conservative-dominated Supreme Court would go to safeguard religious liberty. These Catholic Church leaders proposed St. Isidore of Seville Catholic Virtual School, a K-12 online charter school with a curriculum based on Catholic beliefs. They sought to provide a tuition-free option for families who want a private education but cannot afford it.
Oklahoma’s governing board for charter schools approved the Catholic Church’s application 3-2, but the state’s attorney general, Republican Gentner Drummond, sued the board, claiming that its approval of St. Isidore of Seville Catholic Virtual School created a state-sponsored religious public school, which is illegal.
In 2024, the Oklahoma Supreme Court sided with Drummond, ruling 6-2 that charter schools, which are taxpayer-funded but independently operated, are still public schools, and state law mandates public education to be secular.
The Oklahoma State Charter Board and the Catholic Virtual School filed an appeal with the United States Supreme Court. They contended that once the state allowed private entities to operate charter schools, these schools retained enough independence from the state to keep them from being classified as “public” schools. Furthermore, if the state allows other private entities to run charter schools while excluding the Catholic Church, then the state is unconstitutionally discriminating against religion.
The case presented the United States Supreme Court with two questions to answer.
1. Whether a charter school that is founded and operated by private entities is, for First Amendment purposes, considered either part of the government or generally engaged in state action.
2. Whether a state violates the Free Exercise Clause by excluding religious schools from a charter school program.
It was claimed that Justice Barrett recused herself because she was close acquaintances with the legal counsel to the Oklahoma Catholic Church, which founded St. Isidore. Barrett’s absence left eight justices: five conservatives and three liberals. According to USA Today, “During oral arguments, the court’s conservative majority seemed sympathetic to the Catholic Church’s proposal, which would have been a major expansion of the use of taxpayer money for religious education. But one of the five conservative justices who participated in the case eventually sided with the three liberal justices concerned about the erosion of the separation of church and state.”
Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, viewed the Supreme Court’s 4-4 decision as a victory for constitutional principles.
Gaylor was wrong. This was not a victory. The 4-4 split upholds the decision of the Oklahoma Supreme Court for the time being, but it sets no precedent that charter schools are public schools, which means that another church group with no ties to Barrett could revisit the case and potentially establish the first religious charter school because Barrett would not be recused; she would be the tie-breaking vote.
The case divided conservatives.
Some conservatives support religion in public schools and believe that restricting it is discriminatory, while others wish to preserve America’s founding principle of separation of church and state. The Republican governor of Oklahoma declared, “This issue is far from being settled. We are going to keep fighting for parents’ rights to instill their values in their children and against religious discrimination.”
Drummond claimed that permitting the Catholic charter school would “open the floodgates and force taxpayers to fund all manner of religious indoctrination, including radical Islam and even the Church of Satan.”
Oklahoma’s governor called Drummond’s remarks “open hostility against religion.”
Drummond is not hostile to religion. He only objects to state-sponsored proselytizing, and Catholics and Protestants can be as ardent as radical Islam in this regard. However, if St. Isidore of Seville Catholic Virtual School decides not to incorporate Catholic teachings into its curriculum, there is a non-radical Islamic charter school model it could follow.
In 2012, CBS’s 60 Minutes aired a segment on “The Gulen Movement.”
Fethullah Gulen was a Turkish Islamic cleric who emphasized tolerance, interfaith dialogue, and education. Gulen’s followers established a network of successful charter schools in the United States, focusing on science and math.
The Gulen Movement established 130 charter schools in 26 states. (They’ve also built schools in Turkey, Togo, and Taiwan.) 60 Minutes wanted to know what motivated the followers of a Turkish Islamic cleric to devote themselves to operating independent public schools.
Gulen taught his followers that if they want to be devout Muslims, they should build schools instead of mosques. These schools should teach science, not religion. Gulen proclaimed in sermons that “studying physics, mathematics, and chemistry is worshipping God.” He also emphasized to his followers that education, not religious belief, is the only way to solve social problems.
Unfortunately, if the Catholic Church was advised to model their charter schools after the Gulen Movement, the Catholic Church would urge the advisors to go to hell.
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