But the reprieve may be short-lived. Both supporters and opponents recognize the constitutional debate over whether publicly-funded charter schools can explicitly promote religion isn’t settled.

“It’s obviously disappointing,” said Nicole Garnett, a Notre Dame University law professor. But the decision — a 4-4 tie — doesn’t set a precedent, she said. “The issue remains alive and will undoubtedly resurface soon.”

Garnett’s novel legal argument in favor of charters being private inspired Catholic church leaders in Oklahoma to apply for a charter in 2023. But ironically, her long and close friendship with Justice Amy Coney Barrett is the likely reason for the split decision. 

As ����Ӱ�� reported in March, Garnett and Barrett met as Supreme Court law clerks in 1998, both taught at Notre Dame and raised their children in the same neighborhood. Josh Blackman, an associate professor at the South Texas College of Law, and a friend of Garnett’s, predicted at the time that the case “might go to a 4-4 decision.”

“I feel bad for Nicole,” he said. “This is her life’s work.”

Barrett recused herself from the case, and in a simple , the justices said the state supreme court’s ruling last year to deny a charter to St. Isidore of Seville Catholic Virtual School stands — for now.

“It’s a day of celebration and relief,” said Robert Franklin, a former member of the Oklahoma virtual charter board who voted against the school’s application. “I am not so naive [to think] that the matter doesn’t find breath again at a later date, but for today, it’s a day to exhale.”

While the opinion doesn’t say how the justices decided, experts largely suspect that Chief Justice John Roberts played a central role and sided with the three liberals on the court. Early in April’s oral arguments, he appeared skeptical of the school’s assertion that Oklahoma didn’t create or control the school.

The conservative-leaning court, which has increasingly ruled in favor of expanding religious freedom, agreed to hear the case just four days after President Donald Trump took office. Roberts is the author of the three most recent opinions that Garnett and other scholars consider to be a “trilogy” — a over whether a religious school could participate in a state program offering playground resurfacing materials and two cases involving state funds for religious education, in and . But Roberts is also known for restraint. The potential disruption to nearly 8,000 schools nationwide may have proved to be too much for the chief justice, said Robert Tuttle, a professor of law and religion at the George Washington University Law School.

The case “seemed to many people like a vehicle for expanding the idea of school choice as broadly as possible,” Tuttle said. But he speculated that the court — most likely Roberts — “recognized the concerns … that this would have the possibility of killing charter schools.”

He agrees with Garnett that a similar case could rise to the court, but for now, the matter remains unsettled. Even in cases of a tie, justices can issue their own opinions, something they did not do in this case.

“If it were settled, then you would have opinions,” he said. But the case presented multiple “red flags under the Establishment clause.” Thursday’s ruling, he said, means that when it comes to faith-based charter schools, the line between religious freedom and government entanglement is unclear. “What we know is that the Supreme Court doesn’t know it either.”

The decision leaves many Catholic families in Oklahoma, especially those in rural areas, without a publicly funded faith-based option. In a statement, Archbishop of Oklahoma City Paul Coakley and David A. Konderla, the bishop of Tulsa, said that they are “exploring other options for offering a virtual Catholic education to all persons in the state.”

Days before the oral arguments, Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, warned the court and the Trump administration that declaring charter schools to be private would threaten funding for students since state laws define them as public. 

Others argued that a decision in favor of religious charter schools would compromise civil rights protections since many faith-based schools deny admission or services to LGBTQ students or kids with disabilities.

“Families choose public charter schools because they provide innovative, student-centered learning environments tailored to students’ unique needs and because they are accountable to families and taxpayers,” Coleman said in a statement Thursday. “That’s what makes them special, and that’s what we’re here to protect.” 

The administration, as part of its school choice agenda, has heavily promoted charter schools since January by removing Biden-era regulations and increasing funding. But some experts say states might tweak charter school laws to clarify that charters are public despite being operated by private organizations.

“The fact that it was as close as it was is a signal. This is a chance to make some changes because it’s going to come up again,” said Preston Green, an education and law professor at the University of Connecticut. He has recommended that states amend laws to clarify that board members for charter schools are public officials.

Green recognizes that Thursday’s outcome may have been a fluke. A recusal such as Barrett’s is unlikely to happen again. “There’s just no guarantee that Coney Barrett is going to side with the liberals. There’s no guarantee that Roberts — or whoever it was — would come out that way the second time around.” 

Such a ruling would be bad for the country and deeply disruptive. It could upend the charter school sector, raising questions about the constitutionality of the federal charter school law and the laws in 47 states, all of which require charters to be nonsectarian. It could lead to blue states cutting back on charter schools and red states seeing a flood of religious charters open up, which would further balkanize an already divided country. 

Is there any hope? The best outcome would be if one of the conservative justices — most likely Chief Justice John Roberts — ended up siding with the liberal justices and rejecting a requirement that authorizers must permit religious charter schools. The second-best outcome would be if policymakers took creative steps (as I outline below) to comply with an adverse Supreme Court ruling while preserving social cohesion and retaining for charter schools the flexibility they need to flourish.

I have a modest hope that Roberts’s vote may be in play. If he votes with the court’s three liberal justices, a 4-4 decision would let stand the Oklahoma Supreme Court’s decision opposing religious charters. (Justice Amy Coney Barrett is recused in the case.)  

In the oral arguments, the justices on the central question in the case: Are charters public or private? If they are public, then the Establishment Clause of the First Amendment prohibits them from being religious. If they are private, by contrast, the court’s interpretations of the First Amendment’s Free Exercise Clause that government cannot discriminate against religious schools would apply. 

Roberts asked tough questions of both sides, but the most hopeful moment came when he noted that the state has “a much more comprehensive involvement” in charter schools than in private schools, which could tilt his thinking against religious charters.

Greg Garre, who served as solicitor general under former President George W. Bush, made a powerful case that charter schools are public. He noted that private schools differ from charter schools in eight respects: 

• “Private schools can open without any state approval.”
  
• “There are no requirements or supervision of curriculum for private schools.”
  
• Private schools “can charge tuition.”
  
• Private schools “can restrict admissions.”
  
• Private schools are “not subject to general state assessment tests.”
  
• Private schools are “not subject to nearly the reporting requirements or oversight as public schools”
  
• Private schools “not subject to state rules regarding student discipline, civil rights [and] health”
  
• “There’s no process for closing” private schools “short of consumer fraud.”

If Roberts nevertheless decides, along with other conservatives, that charter schools are private schools, and states are compelled to authorize religious charters, that would set off a number of consequences.

First, blue states are likely to rebel. As Justice Neil Gorsuch noted, some states may begin “imposing more requirements on charter schools,” essentially making them more “public.” For a sector that thrives on independence, this could constitute a “boomerang effect.”

Second, red states are likely to see a number of religious private schools convert to charter status. As Justice Elena Kagan noted, “There’s a big incentive to operating charter schools, since everything is funded for you.” She expected to see “a line out the door” of applicants.

Third, there is likely to be more litigation. As the justices asked in the oral argument: If charters are deemed private schools, then does that mean a conservative Christian charter school could, as a matter of religious liberty, bar the admissions of Jewish, Muslim and gay students? Could the same school discriminate against gay or non-Christian faculty members? Could it reject state standards requiring that it teach evolution?  

I found this all very depressing, but there was one compelling moment in the oral argument that gave me some hope and sparked an idea about how state charter school boards could minimize the damage of a negative Supreme Court decision: focus on the question of a school’s mission.

At one point during the argument, Justices Sonia Sotomayor and Ketanji Brown Jackson offered a hypothetical question. If the government wanted to commission a mural and a religious painter wanted to include religious images, could the government reject that approach? Yes, said James Campbell, the attorney for the charter school board, because in that case, “the government is trying to speak its own message on its own buildings.” He claimed that the charter school law in Oklahoma, by contrast, gives “broad autonomy to the schools to come up with their own mission.” 

Under that logic, what if charter school laws were amended to say that applicant schools were free to identify a number of missions, but that they had to identify as their ultimate mission teaching the liberal democratic values that bind together Americans of all backgrounds? That’s already a central premise the constitutions and laws of many states. As Albert Shanker, who first brought the idea of public charter schools to the national stage, argued, the primary mission of public education is to teach these values, which is bound up in “.”

Teaching liberal democratic values is probably consistent with the approach of most religious charter schools, but few are likely to agree that this is their most important mission. The Oklahoma school at the center of the Supreme Court case, St. Isadore of Seville Catholic Virtual School, says its “ultimate goal” is “eternal salvation.” For many religious leaders, saying that promoting liberal democracy is their school’s primary mission would constitute blasphemy. When former President Joe Biden called the ideals in America’s founding documents “sacred,” a Catholic priest objected in the pages of the Wall Street Journal, saying, “.”

The test for charter school applicants wouldn’t be religious; it would be one of mission. Not every religious school would fail the test, and not every secular school would pass it. If the government is entitled to “speak its own message on its own building,” why can’t a state ask the schools it funds to advance as their central message the preservation of liberal democracy?