On May 22, 2025, the U.S. Supreme Court upheld a ruling by the Oklahoma Supreme Court to ban the use of public funds in support of religious charter schools.
In Oklahoma Statewide Virtual Charter School Board et al., v. Drummond, Oklahoma Attorney General Gentner Drummond sought a judicial order directing the Oklahoma Statewide Virtual Charter School Board to rescind its contract with St. Isidore of Seville Catholic Virtual School on the grounds that the contract violated state and federal law.
Drummond also sought a declaratory judgment that the contract was unconstitutional.
The U.S. Supreme Court issued a one-page, one-sentence decision stating, “The judgment [of the Oklahoma Supreme Court] is affirmed by an equally divided Court.” The court was deadlocked at 4-4, as Justice Amy Coney Barrett recused herself from participation in the matter. By rule, when the U.S. Supreme Court is evenly divided on appeal, the ruling from the lower court is affirmed and becomes the new status quo.
Background in the case
In a June 2024 decision, the Oklahoma Supreme Court agreed with Gentner, holding that:
“Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian. However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State. This State’s establishment of a religious charter school violates Oklahoma statutes, the Oklahoma Constitution, and the Establishment Clause. St. Isidore cannot justify its creation by invoking [First Amendment] Free Exercise rights as a religious entity. St. Isidore came into existence through its charter with the State and will function as a component of the State’s public school system. This case turns on the State’s contracted-for religious teachings and activities through a new public charter school, not the State’s exclusion of a religious entity. The Court grants the extraordinary and declaratory relief sought by the State. The St. Isidore Contract violates state and federal law and is unconstitutional. … (W)e direct the Charter School Board to rescind its contract with St. Isidore. … .”
On January 24, 2025, the United States Supreme Court agreed to review the Oklahoma Supreme Court’s decision, and to resolve the following two issues: (1) whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.
For further information about this matter, please contact the NJSBA legal department at (609) 278-5279, or your board attorney for specific legal advice.
