(The Wilson Times)—In deciding whether to authorize the nation’s first religious charter school to operate in Oklahoma, the Supreme Court could unwittingly undermine religious freedom for tens of thousands of students attending roughly 7,800 non-sectarian U.S. charter academies, including 210 schools in North Carolina.
Justices heard oral arguments Wednesday in Oklahoma Statewide Charter School Board v. Drummond, a case that pits the St. Isidore of Seville Catholic Virtual School’s charter application against an Oklahoma state law preventing privately run, publicly funded charter schools from providing religious instruction. Lawyers on both sides grappled with the tension between the First Amendment’s establishment clause, which prevents government from endorsing a preferred faith, and the free exercise clause, which forbids government interference in religious practice.
Catholic organizations aren’t alone in supporting St. Isidore. In an amicus brief filed on behalf of the Jewish Coalition for Religious Liberty, the Religious Freedom Institute’s Islam and Religious Freedom Action Team and the Abraham Knowledge Academy, the Liberty Justice Center argued that Oklahoma’s opposition to a Catholic charter stems from a desire to shut the door on state-funded schools teaching Islam and other faiths.
“Justices Gorsuch and Alito made clear what’s at stake: you can’t shut down a Catholic charter school just because you’re afraid a Muslim one might follow,” Dean McGee, the LJC’s senior counsel for educational freedom, said in a news release. “That reeks of religious animus, and the Constitution forbids it. We’re proud to represent Muslim and Jewish organizations united against that kind of bigotry.”
Petitioners argue that Oklahoma’s non-sectarian charter school requirement discriminates against religious organizations by depriving them of a public benefit — state funding — that’s available to similarly situated secular groups. The case could turn on whether charter schools are considered state actors, meaning they operate under government auspices despite being otherwise private entities.
Sitting en banc, the 4th U.S. Circuit Court of Appeals ruled in June 2022 that North Carolina’s public charter schools are state actors with constitutional obligations. The decision nixed Leland-based Charter Day School’s dress code requiring girls to wear dresses or skirts, reserving pants and shorts for boys. Private schools can adopt such rules, but their public-school counterparts can’t engage in gender-based discrimination. The Supreme Court declined to hear an appeal of Peltier v. Charter Day School, choosing in 2023 to let the 4th Circuit opinion stand.
Solicitor General D. John Sauer — the U.S. Department of Justice’s top litigator — argued in favor of granting St. Isidore a charter. Justice Sonia Sotomayor questioned the government’s reversal, noting that Sauer’s predecessor authored an amicus brief in Peltier that recognizes charter schools as state actors. Sauer distinguished the two cases by pointing to free exercise clause claims that weren’t at issue in the Charter Day dress code debacle.
Justice Amy Coney Barrett, whose Catholic faith became a brief flashpoint in her 2020 confirmation hearings, has recused herself from the case. Predicting outcomes based on the questions raised in oral arguments is notoriously tricky, but most analysts cast the high court as leaning toward giving St. Isidore its blessing. Writing for SCOTUSblog, Amy Howe sees Chief Justice John Roberts as the probable swing vote.
This editorial page takes no position on whether religious charter schools should coexist with non-sectarian academies as public schools of choice eligible to receive state money. We need not reach that issue to recognize that an overly broad opinion recasting charters as purely private entities would have disastrous consequences for charter school families.
“First, charter schools are public schools,” lawyer Gregory Garre argued on Oklahoma Attorney General Gentner Drummond’s behalf. “They bear all the hallmarks of the criteria this court recognized in Carson (v. Makin), are established, just like the court said in Carson states could, to expand educational opportunities within the public schools system, and have been recognized as and indeed are required to be public schools by the Congress of the United States and the legislatures of 47 states.”
A binding precedent holding that charters aren’t state actors means constitutional law would no longer apply. Unlike their classmates in traditional public schools, charter school students would have no right to free speech, religious liberty or due process on campus.
We highlight Senior Circuit Judge Barbara Milano Keenan’s sage words in the Peltier case: “No parent can nullify the constitutional rights of other parents’ children.”
If the Supreme Court is inclined to green-light religious groups’ request to run charter schools, we urge justices to keep Keenan’s promise and affirm charters’ status as state actors. That would preserve students’ religious freedom rights at non-sectarian schools from Oklahoma to Ocracoke.