Oklahoma Statewide Charter School Board v. Drummond

On May 22, the Supreme Court issued a 4-4 one-line, per curiam decision in Oklahoma Statewide Charter School Board v. Drummond. The decision leaves in place an Oklahoma Supreme Court decision that blocked the creation of what would have been the nation’s first religious public charter school.

What You Need to Know 

• Facts of this Case: In early 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Oklahoma Statewide Charter School Board to form St. Isidore of Seville Catholic Virtual School. St. Isidore would provide online classes, including religious curriculum, to about 500 K-12 students. On June 5, 2023, the Board approved the application. On October 9, 2023, the Board voted to approve the school’s contract for sponsorship, with the Board as its government sponsor. The contract states that St. Isidore has the right to freely exercise its religious beliefs and practices and explicitly notes the school’s affiliation with a nonpublic sectarian school or religious institution. Under Oklahoma state law, charter schools are considered public schools and receive funding from the state.
• Procedural Background: Oklahoma Attorney General Gentner Drummond sought a writ of mandamus directing the Board to rescind the school’s contract. On June 25, 2024, the Oklahoma Supreme Court held that the contract violates the Oklahoma state constitution, Oklahoma state law, and the federal Establishment Clause. The Court further directed the Board to rescind its contract with St. Isidore. The Board and St. Isidore appealed to the United States Supreme Court and on January 24, 2025, the cases were consolidated and cert was granted.

• Relevant Precedent: This case is the latest in a string of religious school funding cases the Roberts Court has taken up in recent years. In his opinion for the majority in the 2020 case Espinoza v. Montana Department of Revenue, Chief Justice Roberts explained “a state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” In 2022, the Court went a step further in Carson v. Makin, with Chief Justice Roberts again writing for the majority that Maine’s tuition assistance program, which provided money for private, nonsectarian school tuition when no public school was easily accessible, violated the Free Exercise Clause as it “operate[d] to identify and exclude otherwise eligible schools on the basis of their religious exercise.” This incremental progression, from allowing public money to flow indirectly to private religious schools to requiring public money to flow indirectly to private religious schools should a state allow for any public money to flow indirectly to any private schools, caused Justice Sotomayor to note in her Carson dissent that “[t]he Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once ‘permitted religious exercise to exist without sponsorship and without interference.’”
• Issue Before the Court: Does the contract establishing St. Isidore of Seville Virtual Charter School violate the Oklahoma Constitution, state law, and the First Amendment?
• What did the Court decide: The entirety of the Court’s 4-4 per curiam decision is one sentence long: “The judgment is affirmed by an equally divided Court.” The Court also noted Justice Barrett’s recusal, which many have presumed was prompted by her prior relationship with Notre Dame Law School’s religious liberty clinic, which was involved in the case. The result came as a surprise to many court observers, as a majority of the Court seemed to signal their openness to a religious charter school during oral argument on April 30th. Given the unsigned opinion, it is unclear which of the Court’s conservative justices presumably joined the liberal bloc to create the deadlock.
• Take Away: The immediate impact of Oklahoma Statewide Charter School Board v. Drummond will be to block what would have been the nation’s first religious public charter school. That unexpected result is a victory unto itself. The prohibition on public funding for religious schools has been foundational to the separation of church and state. However, the 4-4 split and single sentence decision has no precedential value. The threat of further subjugation of the Establishment Clause to the Free Exercise Clause, and publicly-funded religious schools, remains.