The U.S. Constitution requires that school choice initiatives should be free from religious discrimination. Progressives think otherwise and think nothing of denying real school choice to Catholics.  

Now the Supreme Court has an opportunity to uphold this crucial freedom. 

This term, taking place tomorrow, the Court is reviewing the Oklahoma Attorney General’s attempt to prevent St. Isidore of Seville Virtual School from being certified as a public charter school. Before getting to the legal arguments, it’s important to consider why the Church is seeking to run a charter school. Oklahoma City’s Archbishop Paul Coakley and Tulsa’s Bishop David Konderla recently explained their reasons for creating St. Isidore, a Catholic online school, for The Oklahoman:  

“As shepherds of our wonderful state-wide flock, it has always been our desire for families to be able to decide what is best for their children’s needs. Parents and family members are the first and most important teachers of their children. But they can’t do it alone, and more choices — not fewer — help everyone. We believe that a wide variety of schools may help a child reach her God-given potential, depending on her own needs.” 

Well said. Unfortunately, no good deed for children and their families goes unpunished. When Oklahoma’s charter board approved St. Isidore’s application in 2023, state Attorney General Gentner Drummond objected and went to court.  

Drummond points to a provision in the state constitution that prohibits public money from supporting any “sectarian institution.” He also claims that chartering the school would violate the Establishment Clause of the U.S. Constitution. Like peddlers of anti-Catholic bigotry in the late-19th century, Drummond has turned to fear-mongering and confusing the issues at hand in order to garner support. He claims that denying St. Isidore’s charter status was proper in order to avoid the public funding of “the teachings of Sharia Law or even Satanism.”  

Drummond may have successfully convinced the Oklahoma Supreme Court, but he has his work cut out for him before the nation’s highest court.  

Back in 2020, the Supreme Court admonished Montana officials from relying on a similar “no-aid” provision in their state constitution to exclude religious schools from participation in a state-sponsored scholarship program. “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Chief Justice John Roberts wrote for the Court’s majority. This same principle was reaffirmed two years later when Maine refused to permit religious schools to participate in a voucher program for rural students. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” reiterated Roberts.  

Despite clear guidance from the Supreme Court, Drummond predictably continues to double down on the argument that certifying St. Isidore’s violates the Establishment Clause. He points to a number of attributes of charter schools and their relationship with the state’s chartering board to argue that charter schools are public schools. But they aren’t. 
St. Isidore is a private nonprofit school. Its autonomy has been on display since its inception. As the school explains in its brief to the Court, “The State did not design the school. It did not create or encourage St. Isidore’s religious character. It did not appoint any member of St. Isidore’s board. It did not instruct the school to offer an education in the Catholic tradition. And it will not hire or supervise the school’s teachers and administrators.”  

Notre Dame Law School’s Nicole Garnett, one of the nation’s top religious freedom and school choice scholars, is part of the school’s Lindsay and Matt Moroun Religious Liberty Clinic representing St. Isidore’s. She writes in the Wall Street Journal that “Much of the commentary about the case exaggerates its scope, claiming that a ruling in St. Isidore’s favor would open the doors to religion in public schools.”  

These naysayers are wrong. As Garnett explains, “The Archdiocese of Oklahoma City and the Diocese of Tulsa didn’t become [the state of] Oklahoma when they entered into a contract to operate St. Isidore as a charter school. They, like other government contractors, are private entities with constitutional rights.”  

According to Garnett, for the sort of “educational pluralism” that states such as Oklahoma are promoting through their system of charter schools to pass constitutional muster, “religious pluralism” must also be respected.   

Justice Amy Coney Barrett, a friend and former colleague of Garnett, has recused herself from considering the case.  

At the heart of Drummond’s argument is a mistaken understanding of the First Amendment. The protections of the religion clauses of the First Amendment work in tandem to safeguard, not frustrate, religious freedom.  

As the Court explained recently when vindicating a public-school football coach’s right to pray after games, “A natural reading of the First Amendment suggests that the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”  

Just as allowing public funds for charter schools like St. Isidore’s that are privately run and freely chosen isn’t establishing religion, denying them charter status because of their religious character interferes with the free exercise of religion.  

Oral argument will happen Wednesday morning, and the Court will issue its decision before the end of its term.