The bid to create the nation’s first publicly funded religious charter school fell flat at the Supreme Court this week, but advocates believe it leaves them with a path forward.
Conservative Justice Amy Coney Barrett recused herself from the court’s 4-4 deadlocked decision, suggesting she could provide the crucial fifth vote in a similar case down the road.
With the justices releasing no opinions to dissuade another shot at the Supreme Court, groups on both sides of the issue are expecting a Round 2.
“Obviously, the outcome here was in part because there were only eight justices. Justice Barrett did not participate here. That might not be the case in a future case, but we don’t know of the of the eight justices who did participate … we don’t know who took what position,” said Thomas Jipping, a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
“There wasn’t a decision, and you can’t infer anything from silence,” he added.
For months, the fate of St. Isidore of Seville Catholic Virtual School in Oklahoma rested with the Supreme Court. The state’s top court had voided the school’s contract as unconstitutional.
When the justices announced in January they would review that ruling, Barrett indicated she wouldn’t be participating.
She did not publicly explain her recusal, but court watchers believe it stems from her close friendship with Nicole Garnett, a professor at Notre Dame Law School. Notre Dame’s religious liberty clinic represented St. Isidore, and Garnett has publicly supported the school.
“I’m obviously disappointed at the result, but the order has no precedential weight,” Garnett said in a statement. “The question whether barring religious charter schools violates the Constitution remains live, and I remain confident that the Court will eventually rule that it does.”
Charter schools are publicly funded schools that are run by private organizations and must be open to all students. Its critics warn that the movement would take away taxpayer funding for traditional public schools and instead put those dollars toward religious education.
“The entire survival of the public school system as a nonsectarian institution in this country, a 250-year-old proposition, is at risk,” Columbia Law School professor James Liebman said.
Barrett’s specific reasoning for sitting out remains unclear, as the justices have acquaintances and friends who regularly participate before the court. But her recusal was celebrated by watchdogs that have pushed for stronger ethical standards at the Supreme Court.
“Today’s deadlock shows the justices have it within them to exercise ethical leadership, even if it leads to results some might deem less than supreme,” Gabe Roth, executive director of Fix the Court, said in a statement.
It leaves open the possibility Barrett could participate in a future, similar case that deals with a different school and with which the conservative justice has no conflict.
“From an institutional and an ethical perspective, it is far better that Justice Barrett sat out this case due to her conflict than exercise a purported ‘duty to sit,’ which would’ve caused an air of bias to hang over it. The religious charter school issue will undoubtedly return to the court, and we’ll know Justice Barrett’s views soon enough,” Roth continued.
Supporters of St. Isidore are hoping Thursday’s decision is not the end of the road.
“We are exploring other options for offering a virtual Catholic education to all persons in the state,” Oklahoma City Archbishop Paul Coakley and Tulsa Bishop David Konderla, whose dioceses formed the school, said in a joint statement.
“While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future,” said Alliance Defending Freedom attorney Jim Campbell, who argued the case before the Supreme Court on behalf of Oklahoma’s charter school board.
Even those who were pleased that the court did not sign off on St. Isidore acknowledge this will not be the end to the issue.
“It would be better, of course, if we would have had the certainty of a 5-3 decision. But maybe another case will come before the court at some point. But, for today, and for next school year, and for the foreseeable future, charter schools will continue to operate on public schools as they always were,” said Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools.
Liebman, who filed an amicus brief in the case opposing St. Isidore, noted the case was part of a push happening all over the country to establish publicly funded religious charter schools.
“It didn’t work out as they hoped,” Liebman said. “But they will certainly generate a new case, or many new cases, and those cases will come back to the Supreme Court, and so the issue will certainly be kept front and center.”
The case entered the religious liberty sphere advocates have been trying to break open in public schools at the Supreme Court for years.
At the crux of the dispute is whether schools such as St. Isidore should legally be considered a state actor, like an ordinary public school.
The Supreme Court has held that states may require their public schools be secular.
But the school pointed to previous cases the Supreme Court decided in Maine, Montana and Missouri, which prohibited the states from blocking religious schools’ eligibility for grant programs for private schools.
Jipping said the argument fell flat as this case didn’t “line up clearly” with court precedent, and this instance was “a little unusual to try to, well, to bring to the Supreme Court.”
“I do think also this decision and this case suggests that the better way to provide alternatives to parents, for parents to the traditional public schools is for states to expand their school choice programs,” he added.
