SCOTUS RULES 4-4 ON MAJOR CHARTER SCHOOL CASE
On Thursday, May 22, 2025, the U.S. Supreme Court announced it was evenly split (4-4) on whether to permit an Oklahoman public charter school, which receives government funds, to operate wholly as a Catholic school. Justice Amy Coney Barrett recused herself from the case. This deadlock means that Oklahoma’s Supreme Court decision remains good law, though it is only binding in the state and has no nationwide effect. Had the Court overturned the state court’s decision, it would have upended charter school funding as we know it.
The case, Oklahoma Statewide Charter School Board v. Drummond, considered whether an Oklahoma public charter school could operate wholly as a Catholic school, raising the broader question of whether an entity, like a charter school, that provides a public good (i.e., free education), is a private entity and thus not subject to certain constitutional and legal restrictions.
In 2023, Oklahoma’s charter school board (CSB) approved an application to establish a virtual Catholic charter school with an explicitly religious purpose: to fully embrace the Catholic Church’s teachings, fully incorporating them into every aspect of the school, and to evangelize the mission of the church. But the state’s attorney general (AG), Republican Gentner Drummond, asked the Oklahoma Supreme Court to invalidate the CSB’s contract with the school. The Oklahoma Supreme Court granted that request and found that the school was a public school and so must be non-religious “in line with the Oklahoma Constitution and the Establishment Clause [of the U.S. Constitution], which both prohibit the State from using public money for the establishment of a religious institution.”
The school and the CSB urged the U.S. Supreme Court to overturn the state court’s decision. The CSB argued that charter schools are neither state actors nor government entities, and simply receiving public funding does not change that designation. Furthermore, the state court’s decision could result in other faith-based organizations (e.g., foster care services, homeless shelters, etc.) being labeled as “state actors” just because they receive government support. Those organizations could be harmed if the state court decision was upheld. So, CSB argued, they ought to be free to pursue religious purposes because finding otherwise would amount to unlawful discrimination against groups that want to operate religious charter schools and the parents choosing to send their kids there.
AG Drummond countered that creating and funding a religious public school would have violated the Establishment Clause of the U.S. Constitution. He argued that charter schools are public schools because they are free, open to all, created and funded by the state, and subject to continuing government regulation and oversight – distinctly different from the types of organizations CSB contends would be harmed by the state court ruling. Allowing the creation of a Catholic public charter school, he continued, would have amounted to state sponsorship of a religion, an unconstitutional establishment of an official religion or favoring of one over another.
Entities receiving government funding historically could not be religiously focused. Maintaining this separation of Church and State, the Court has previously noted, “insure[d] that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970). But more recently, the Supreme Court has begun changing its tune: in 2017, they found that Missouri violated the Constitution by excluding a church preschool from a state-run program; in 2020, they held that Montana could not prohibit religious schools from receiving a tax credit used to fund scholarships for children to attend private schools; and in 2022, they overturned a Maine policy allowing state funds to be used for tuition at non-religious schools but not at religious schools.
The one-sentence announcement indicating that the Court was deadlocked on the question means the separation of Church and State, at least in the nation’s public schools, remains in place.
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