Supreme Court appears open to religious charter schools getting public funding in Oklahoma case

Justice Brett Kavanaugh said during the hearing, "all the religious school is saying is don’t exclude us on account of our religion. I mean, if you go and apply to be a charter school and you’re an environmental studies school, or you’re a science-based school, or you’re a Chinese immersion school, or you’re an English grammar-focused school, you can get in, and then you come in and you say, 'oh we’re a religious school.' It’s like, oh, no can’t do that. That’s too much. That’s scary. We’re not going to do that."

Kavanaugh said that cases "have made very clear" that "you can’t treat religious people and religious institutions and religious speech as second class in the United States."

"That seems like rank discrimination against religion, and that’s the concern that I think you need to deal with here."

Justice Amy Coney Barrett has recused herself from the case, which could result in a 4-4 ruling that leaves a state court decision rejecting the school in place if any conservative judge sides with the three liberal ones, per the New York Times. The outlet noted that Barrett did not explain why she recused herself, but she is a former Notre Dame law professor, whose religious liberty clinic is representing the charter school, and is close friends with a professor there who has assisted the charter school.

Attorneys with the school and the state agency that had approved it said that the school was privately created and would be independently operated. Justice Elena Kagan said that St. Isidore and other similar charter schools have many hallmarks of “regular public schools.”

"They accept everybody. They’re free. They can be closed down by the state. There’s a good deal of curricular involvement by the state, approvals by the state. They have to comply with all the state standards," she said.

The school at the center of the case is the St. Isidore of Seville Catholic Virtual School, which would be run by the Archdiocese of Oklahoma City and the Diocese of Tulsa. It aims to incorporate Catholic teachings into its lessons. The main question is whether the First Amendment permits states to fund religious charter schools.

Oklahoma’s charter school board had approved the proposal to open the school, however, Oklahoma Attorney General Gentner Drummond sued to stop it, claiming that a religious public school would violate the First Amendment and the state’s constitution.