WASHINGTON, D.C. — The U.S. Supreme Court heard oral arguments Wednesday morning in the case of Oklahoma Catholic leaders, who believe they have a First Amendment right to open the nation’s first religious charter school at taxpayers’ expense.
The proposal for St. Isidore of Seville Catholic Virtual School has already been declared unconstitutional by the Oklahoma Supreme Court based on long-established federal and state legal doctrine on the separation of church and state.
“The establishment clause does not restrain it, and the free exercise clause protects it,†argued St. Isidore’s counsel of record, Michael McGinley, of the law firm Dechert LLP.
Supporters of charter schools rally outside of the Supreme Court on Wednesday, April 30, 2025, in Washington. (AP Photo/Mark Schiefelbein)
Named for a sixth-century Catholic bishop and scholar whom Catholics have deemed the patron saint of the internet, St. Isidore seeks to expand Catholic religious teachings to rural areas of Oklahoma where parochial school options are unavailable.
People are also reading…
The religious charter school proposal has been viewed nationally as a possible test case of separation of church and state laws from the time it was received in early 2023 by a very small state agency currently known as the Statewide Charter School Board.
At the heart of the legal controversy over St. Isidore are two clauses within the First Amendment to the U.S. Constitution.
The establishment clause prohibits the government from establishing or creating an official religion or actions that unduly favor one religion over another or religion over non-religion, while the free exercise clause protects both the right to believe in and practice any religion or no religion at all.
Federal law and the laws of 46 states, including Oklahoma, currently define charter schools as public schools, and many of those laws, including Oklahoma’s, specifically prohibit their affiliation with a nonpublic sectarian school or other religious institution.
But the St. Isidore case also hinges on the argument by proponents from the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa that charter schools are actually private entities that cannot be barred from participation in government funding programs simply based on religion.
‘Hostility to religion’?
Supporters of charter schools rally outside of the U.S. Supreme Court on Wednesday. The proposal for St. Isidore of Seville Catholic Virtual School has already been declared unconstitutional by the Oklahoma Supreme Court based on long-established federal and state legal doctrine on the separation of church and state.
Chief Justice John Roberts’ only questions of the day centered on the state of Oklahoma’s role in St. Isidore as a charter school, including the role government plays in charter schools’ curriculum.
Justice Clarence Thomas also asked a few questions on the subject of whether charter schools are really “state actors†or private entities, as claimed by Oklahoma Catholic leaders.
Jim Campbell, chief legal counsel at the conservative Christian legal advocacy group Alliance Defending Freedom, handled the Statewide Charter School Board’s half of the appeal.
He argued that the Supreme Court should find it unconstitutional for “religion to be the wrong kind of diversity,†when charter schools across the country offer enhanced focus on Native American culture, foreign language immersion, and science, technology, engineering and math.
He accused Oklahoma Attorney General Gentner Drummond of suing “to exclude†religious people from participating in Oklahoma’s charter school program and insisted that “they should not be treated as second class.â€
Justice Brett Kavanaugh echoed the sentiment that St. Isidore’s proponents are simply asking not to be treated differently because they’re religious.
“They’re not asking for special treatment,†he said.
Justice Samuel Alito pointed to multiple public statements by Drummond in saying he thought Drummond’s legal position “seems to be motivated by hostility to religion.â€
Meanwhile, Justice Ketanji Brown Jackson seized on the facts that St. Isidore’s application required the Statewide Charter School Board to offer it an amended version of its standard, template contract and that St. Isidore’s proposal includes an amended version of the standard nondiscrimination clause that public schools, including all other Oklahoma charter schools, have been held to for decades.
“What you are saying is it (St. Isidore) is being denied a benefit no one else is. … They want to come in and get a contract tailored to your own terms,†said Jackson.
Supporters of charter schools rally outside of the Supreme Court in Washington as justices hear the case regarding Oklahoma’s proposed sanctioning and funding of St. Isidore of Seville Catholic Virtual School.
Charters defined for decades as public schools
Arguing for Oklahoma’s attorney general, the respondent in the case, was Gregory Garre, a partner in the D.C. office of Latham and Watkins LLP and former colleague and mentee of Chief Justice Roberts.
He has has argued nearly 50 cases before the Supreme Court and was a former U.S. solicitor general under President George W. Bush.
Garre focused his entire argument on the facts that, for the three-plus decades they have existed, charter schools have been defined in federal and state laws as public schools and have been treated as such.
Among the public school characteristics of charter schools: free and open student enrollment, required provision of special education services for those with disabilities, open meetings requirements on their governing boards, required state testing of students, and the imposition of “highly articulated†state academic standards set by each state for decades, Garre said.
He also said there is no chicken or egg debate to be had with St. Isidore because Oklahoma law specifies that a charter school isn’t created or established until it receives state-approved sponsorship — not when proponents come up with a concept for a school and apply.
“It’s not me saying it — it’s the state,†Garre said, referencing the Oklahoma Supreme Court’s earlier decision, which he said stated that St. Isidore “would participate in the state’s public school system. With respect, I don’t think this court can second-guess that.â€
Justices Kavanaugh and Neil Gorsuch inquired of Garre how a state’s charter school program differs from state-funded programs with private operators of nursing homes, food banks, hospitals, and adoption and foster care programs.
“Government contractors are completely different,†Garre said. “It’s an easy distinction.â€
Questioning on Department of Justice shift in position
Signs held aloft outside the Supreme Court building on Wednesday call for freedom for charter schools.
Since President Donald Trump returned to office, the U.S. Department of Justice began supporting the St. Isidore charter school proposal. In an advanced court brief, the DOJ stated that it believes “at least some charter schools (including St. Isidore) retain Free Exercise rights.â€
During arguments by U.S. Solicitor General Dean John Sauer, three justices asked about the recent shift in position.
Justice Sonia Sotomayor put it this way: “So you are saying the federal charter school program is unconstitutional?â€
Sauer responded, “Not exactly.â€
Justice Elena Kagan asked Sauer to help her “understand what part of the federal statute you’re giving up today†and what part “is so patently unconstitutional that you will not defend it?â€
Sauer explained the Trump administration’s position that several recent decisions by the Supreme Court favoring individuals’ rights to free exercise of religion now require “some exceptions.â€
Justice Jackson said: “I’m trying to understand your establishment clause-nothing-to-see-here position. ... Are you saying religious charter schools’ use of public school funds to proselytize present no establishment clause issues?â€
Sauer said that concern would be addressed by the fact that all student participation in Oklahoma charter schools is optional and governed solely by parent choice.
When the U.S. Supreme Court hears oral arguments this week for and against a proposal to open the nation’s first-ever religious charter school in Oklahoma, it could consider removing a long-standing boundary between public school funding and religious teaching. Projects Reporter Andrea Eger talks about her work before she travels to Washington, D.C., to cover the event.
Stakeholders travel to D.C. for arguments
Dozens of Oklahomans were in attendance for all two hours and 20 minutes of oral arguments before eight of the nine U.S. Supreme Court justices, as Justice Amy Coney Barrett has recused herself from the case.
Among them were Gov. Kevin Stitt; his appointed secretary of education, Nellie Sanders; John O’Connor, Stitt’s former attorney general appointee; current general counsel Ben Lepak; and Brian Shellem and Rebecca Wilkinson, chairman and executive director, respectively, of the statewide charter board.
Those there on behalf of St. Isidore included Harrison Garlick, chancellor and in-house legal counsel for the Roman Catholic Diocese of Tulsa; Brett Farley, executive director of the Catholic Conference of Oklahoma; and Michael Scaperlanda, chancellor of the Archdiocese of Oklahoma City.
St. Isidore’s application for state sanctioning and public school funding was developed in concert with a religious liberty clinic at the University of Notre Dame Law School, where Barrett, a Supreme Court conservative bloc member, once taught.
Seated alongside the counsels of record for St. Isidore and the statewide charter board at the petitioners’ head table was John Meiser, an associate clinical professor of law at Notre Dame and the director of the school’s religious liberty clinic.
St. Isidore is also represented by law firms Dechert LLP and Perri Dunn PLLC.
After oral arguments, the participating Supreme Court justices hold conferences to discuss cases and vote on them.
The court’s decision is expected no later than the end of June.
