UPDATE (April 30, 2025, 1:40 p.m. ET): NBC News reported that the Supreme Court’s Republican appointees leaned toward letting Oklahoma approve the nation’s first-ever religious public charter school, with Chief Justice John Roberts emerging as a potentially decisive vote.
The Supreme Court will hear arguments Wednesday in a case that could have “profound consequences” for schools across the country, according to a warning from Oklahoma’s Republican attorney general. He’s sounding the alarm on what would happen if the justices approve the nation’s first public religious charter school.
“It would immediately render the federal CSP [charter school program] and the laws of 45 other States — which all require charter schools to be both public and secular — unconstitutional, eliminating a critical source of funding and creating chaos and confusion for thousands of charter schools and millions of schoolchildren nationwide,” Gentner Drummond argued in a high court brief filed last month.
“Religious education is an invaluable benefit for millions of Americans who choose it,” Drummond’s brief said, adding: “But our Constitution has never required the creation of religious public schools. There is no basis to change that now.”
Yet, however sensible that sounds, Drummond is making the pitch to a high court that has been solicitous of religious claims.
Hoping to continue that streak in this case are the state’s charter board and the school at issue, St. Isidore of Seville Catholic Virtual School. Citing recent rulings backing religious claims on First Amendment grounds, the charter board wrote to the justices, “Three times in the last eight years, the Court has applied that principle to stop state efforts to exclude religious schools, parents, and students from generally available funding programs based solely on their religion.” Along with the school, the board is appealing an Oklahoma state court ruling against them.
Wednesday’s high court hearing follows one last week that was also about religion and school, regarding parents fighting to keep their elementary school kids out of instruction involving LGBTQ-themed books. The court will likely decide both cases by July, when the justices typically publish their final opinions of the term.
The Trump administration is backing the school in Wednesday’s case after backing the parents in last week’s books case. Solicitor General John Sauer is set to argue on the administration’s behalf, returning to the justices after arguing the immunity case on Donald Trump’s personal behalf last year.
Another notable aspect of this case is who will be deciding it — or, not deciding it. Justice Amy Coney Barrett recused herself from the appeal without explanation. Because recusals are important to public confidence in the court, it would be good if the justices consistently explained why they sit cases out. In any event, Barrett’s recusal might stem from her friendship with Notre Dame law school professor Nicole Garnett and Garnett’s relationship with the school at issue. Barrett herself was also a professor at the law school, whose religious liberty clinic represents the school. Garnett is a faculty fellow with the clinic. To be sure, Barrett is just one of six Republican appointees on the court who have sided with religious claims in divided cases. And the school only needs five votes to win this case. But crucially here, they need at least that many, because a 4-4 deadlock would effectively uphold the state court ruling against them. It takes four justices to grant review of an appeal, and they’re obviously aware of this simple math. So the decision to take up the case could itself be a sign that the majority felt comfortable losing one vote. But the hearing could help to confirm whether that’s so. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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