WHO VOTED AGAINST? Supreme Court Splits 4-4 on Catholic Charter School

In a tied decision, the U.S. Supreme Court Thursday allowed an Oklahoma Supreme Court decision to stand, disqualifying a Catholic charter school from receiving state funding.

Justice Amy Coney Barrett recused herself from the ruling, resulting in the 4-4 decision.

The court did not issue an opinion, only stating, “The judgment is affirmed by an equally divided court.”

Oklahoma Attorney General Gentner Drummond, a Republican, sued the Oklahoma Statewide Virtual Charter School Board and its members, seeking to invalidate its contract with St. Isidore of Seville Catholic Virtual School. The school, supported by the Archdiocese of Oklahoma City and the Diocese of Tulsa, aims to operate as a Catholic virtual charter school.

The contract had recognized religious rights for St. Isidore that deviated from the expectation that charter schools remain nonsectarian under Oklahoma law. The Oklahoma Supreme Court ruled that the contract violated the First Amendment’s establishment clause.

The U.S. Supreme Court had taken up the case to examine two questions: whether the education decisions of a privately owned and operated school constitute state action because the school has a contract with the state, and whether the First Amendment’s free exercise cause prohibits—or the establishment clause requires—a state to exclude religious schools from its charter school program.

The Trump administration had previously filed a brief supporting the school, arguing that excluding it from the program would violate its free exercise rights.

The administration argued that Oklahoma’s exclusion of St. Isidore violates the free exercise clause of the First Amendment, and that charter schools like St. Isidore do not represent part of the state government.

Reading the Oral Argument Tea Leaves

While the Supreme Court did not reveal which justices voted for or against the school, questions during oral arguments in April hinted at where they lined up.

Justice Brett Kavanaugh, a Donald Trump appointee, suggested that Oklahoma’s policy “seems like rank discrimination against religion.” He also said, “All the religious school is saying is don’t exclude us [from state funding that other private charter schools receive] on account of our religion.”

Justice Samuel Alito, a George W. Bush appointee, said the Oklahoma Constitution’s ban on religious public schools has an “unsavory discriminatory history” of “anti-Catholic bigotry” and cited “statement after statement by the attorney general that reeks of hostility to Islam.”

Justice Clarence Thomas, a George H.W. Bush appointee, said the crux of the debate rests on whether the school is engaging in some sort of state action, and James Campbell, who represented the state charter school board, said St. Isidore is not.

Justice Neil Gorsuch, another Trump appointee, asked what sort of “legal test” the court should use to determine whether religious charter schools are public schools.

Justice Ketanji Brown Jackson, a Joe Biden appointee, noted that Oklahoma supports religious private schools through school choice vouchers, a policy that Gregory Garre, the attorney for Oklahoma’s attorney general, called a “win-win.”

Justice Elena Kagan, a Barack Obama appointee, asked what would happen in more than 40 states with charter schools if the court allowed religious schools to receive public funding. Garre said such a ruling would “create uncertainty, confusion, and disruption for potentially millions of school children and families across the country.”

Justice Sonia Sotomayor, the other Obama appointee, claimed that “here, the government is the actual creator of the charter school.”

Michael McGinley, St. Isidore’s attorney, disagreed.

Chief Justice John Roberts, a George W. Bush appointee who also serves as head of the judicial branch, asked few questions and did not seem to tilt one way or the other. It seems plausible that either he or Gorsuch may have voted against St. Isidore.

This is a breaking news story and will be updated.

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