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Updated January 24: The U.S. Supreme Court on Friday agreed to hear an Oklahoma case that will test whether public dollars can flow directly to a school with an intentionally religious curriculum.

The case also has large ramifications for the nation鈥檚 charter school sector, potentially settling a debate over whether charters are public or private. 

Last summer, the Oklahoma Supreme Court ruled against St. Isidore of Seville Catholic Virtual School. The school appealed the case to the Supreme Court last fall.

A proposed Christian charter school is taking its case to the U.S. Supreme Court, hopeful that a conservative supermajority will offer a sympathetic ear to the notion that schools that practice religion should not be barred from receiving public funds.

and Oklahoma鈥檚 filed separate petitions with the court Monday, asking the justices to decide an issue that could not only upset accepted norms about charter schools, but radically shift legal understanding about the boundaries between church and state. 

While the court might not make a call for months, several experts predict that if it takes up the case, the justices in the majority would likely rule in favor of St. Isidore.

鈥淚 believe that if the Supreme Court decides to review it 鈥� they will reverse the Oklahoma decision and allow the religious charter school,鈥� Martha Field, a Harvard University law professor, said last month on emerging school models held at Harvard. 鈥淚 would not support such a decision, but I believe it is coming.鈥�

The case centers on a dispute over whether or not a public charter school, where students practice religion as part of the curriculum, violates the Establishment Clause of the First Amendment. In April, Oklahoma Attorney General Gentner Drummond, a Republican, argued that state officials broke the law when they approved the charter 鈥� an argument the state Supreme Court backed in June. But attorneys for the school and religious freedom advocates say St. Isidore is essentially a private contractor that receives public funding to offer a service 鈥� not an arm of the government. 

鈥淭he Supreme Court has made it clear repeatedly in the last few years that if the government opens up a program to private organizations 鈥�  it can’t then say 鈥楤ut if you’re religious, you’re not eligible,鈥� 鈥� said Phil Sechler, senior counsel at Alliance Defending Freedom, a conservative Christian law firm and advocacy group that represents the charter board. 鈥淭hat’s essentially what Oklahoma did.鈥�

In response to the petitions, Drummond warned that allowing religious charter schools would open the 鈥渇loodgates鈥� to non-Christian religions like 鈥渞adical Islam or even the Church of Satan.鈥�

In its brief, the charter board said the state鈥檚 stance toward 鈥渕inority faiths鈥� is still 鈥渙pen hostility toward religion鈥� and poses a 鈥済rave threat鈥� to religious parents.

鈥淭hose with progressive values may send their children to progressive charter schools on the state鈥檚 dime. Those who subscribe to the principles of Montessori education may send their children to Montessori charter schools for free,鈥� the petition states. 鈥淏ut religious parents may not avail themselves of this same benefit because the would-be charter school they desire is religious.鈥�

鈥楽tate actors鈥�

During oral arguments in Oklahoma, one judge asked whether the state was being used as a 鈥渢est case鈥� to overturn prevailing legal opinions on church-state separation. A national movement of wants the courts to rule in favor of greater religious freedom in schools. 

Americans United for the Separation of Church and State, an advocacy organization, is suing over Louisiana鈥檚 law that classrooms post the 10 Commandments, and is currently over Oklahoma state Superintendent Ryan Walters鈥檚 mandate that teachers use the Bible in their lessons. 

But one element that could cast doubt on the Supreme Court鈥檚 willingness to hear the Oklahoma case is its refusal last year to take about charter schools 鈥� one that religious freedom advocates hoped would have paved the way for faith-based charters. 

In , three families sued the school, saying its dress code requiring girls to wear skirts violated their constitutional rights. The charter founders argued that as a nonprofit, the school should be free to enforce rules in line with its traditional values, raising the question of whether a charter school is public or private. 

The U.S. Court of Appeals for the Fourth Circuit said no, and the school appealed to the Supreme Court.

While the justices asked for the U.S. solicitor general鈥檚 , suggesting some were intrigued by the issues presented, they ultimately turned it down.

As the school鈥檚 founders argued in Peltier, supporters of religious charters say that nonprofits, including churches, don鈥檛 automatically become 鈥渟tate actors鈥� because they receive public funds. At that same Harvard conference, Mike Moreland, a Villanova University law professor, offered up an analogy.

鈥淏oeing, by entering into an agreement to produce airplanes as a government contractor for the Pentagon, doesn’t become a state actor,鈥� he said. Charter schools, therefore, don鈥檛 鈥渢urn into state actors for purposes of First Amendment analysis.鈥�

Those who agree with him point to a 1982 case, , in which the Supreme Court said a private school receiving substantial public funding to educate troubled teens was not acting under the 鈥渃olor of state law鈥� when it fired six employees. 

The Ninth Circuit reached a similar conclusion in a more that involved a charter school, but focused on employment issues rather than what students learn in the classroom. 

Those cases could indicate which way the court would lean if it takes the case, said William Jeynes, an at California State University Long Beach, the third panelist at the Harvard event. 

鈥淭he Supreme Court loves precedent,鈥� he said. 

Opponents of religious charter schools say religious freedom proponents are fueling a non-existent debate. 

鈥漇tate laws are clear,鈥� said Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools. 鈥淐harter schools are public schools created by the government, and the government is not allowed to establish any religious public schools.”

鈥業ncredibly popular鈥�

Former Justice Stephen Breyer, a liberal, raised the possibility of a religious charter school in a in which the court ruled 5-4 that officials could not exclude a Christian school from a state tax credit scholarship program simply because it was religious.

鈥淲hat about charter schools?鈥� he asked in his dissent, saying that the court鈥檚 ruling introduced 鈥渦ncertainty鈥� about the distinction between public and nonpublic schools. He reiterated his concern in , a 2022 opinion in which the court ruled 6-3 that states with school choice programs can鈥檛 discriminate against schools that teach religion.

The case focused on a Maine program that pays families to attend private school if their own communities lack a public high school. Breyer wrote that requiring states to fund religious schools blurred the lines between public and private entities. He asked if that 鈥渢ransformation鈥� means that districts with charters 鈥渕ust pay equivalent funds to parents who wish to give their children a religious education?鈥�

Six months later, Oklahoma鈥檚 former Attorney General John O鈥機onnor and state Solicitor General Zach West expanded on the majority鈥檚 opinion to say religious organizations should not be prohibited from opening charter schools. When he took office in 2023, Drummond, O鈥機onnor鈥檚 replacement, threw out his predecessor鈥檚 interpretation.

Since then, Drummond has been at odds with fellow Republicans on the issue, including Walters and Gov. Kevin Stitt. Despite his warning that the charter violates the law, the state鈥檚 virtual charter school board voted last October to approve the contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa. That prompted Drummond鈥檚 lawsuit.

When the school and the charter board lost, Stitt said the decision 鈥渟ent a troubling message that religious groups are second-class participants in our education system. Charter schools are incredibly popular in Oklahoma 鈥� and all we鈥檙e saying is: We can鈥檛 choose who gets state dollars based on a private entity鈥檚 religious status.鈥�

Even after the state Supreme Court ruled against the school, the state charter board initially refused to rescind its contract and then joined St. Isidore in appealing the decision to the U.S. Supreme Court. 

Under pressure from Drummond, who called the charter 鈥渁 serious threat to the religious liberty of all four million Oklahomans,鈥� the board finally voided the contract in August. 

While the school was prepared to serve up to 500 students this fall, it received less than half that number of applications.

Despite the court鈥檚 traditional deference to existing case law, Field noted that the current justices haven鈥檛 shown the for previous opinions they disagree with. Overturning is just one example she cited.  

For someone who clerked for former Chief Justice Earl Warren in the 1960s 鈥� when the court prayer and Bible readings in the classroom 鈥� she said it鈥檚 been disconcerting to see the legal ground shift so radically. 

鈥淚t seems that a lot of people here don’t like the Warren court,鈥� she told the Harvard attendees.  鈥淲hen I went to law school, separatism was the doctrine, and we all believe whatever we learned in law school.鈥�

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