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On Wednesday, the U.S. Supreme Court will hear oral arguments in Oklahoma Statewide Charter School Board v. Drummond, which will determine whether a state can exclude religious schools from charter-school programs. An ever-growing line of Supreme Court decisions establish that such exclusion is unconstitutional.
Three times in the last eight years, the High Court has affirmed a critical First Amendment principle: When a state creates a public program and invites private actors to participate, it can't exclude people or groups just because they're religious. Oklahoma has chosen to create a charter-school program and invite private organizations to run charter schools. Having made that choice, it can't block religious groups just because they plan to include religion in what they teach.
That's why Oklahoma's statewide charter school board approved the application of St. Isidore of Seville Virtual School. St. Isidore satisfied every requirement to operate as a charter school, and it was clear the group would provide a high-quality education for any family that chose it. The only barrier was a state law saying that charter schools cannot include religious groups or instruction. The state board realized that enforcing the religious exclusion would violate the First Amendment. So it approved the application, and then it was sued.
Alliance Defending Freedom, where I serve as chief legal counsel, has the privilege of defending the state board's decision. And I'll be arguing before the Supreme Court that the U.S. Constitution and the Court's recent cases dictate that states can't restrict religious institutions from accessing generally available public programs that are open to other private entities.
On the other side of the case is Oklahoma Attorney General Gentner Drummond. He argues that granting public funds to St. Isidore violates the Constitution's establishment clause. That clause prohibits governments from establishing one specific religion as the official religion. But it's easy to see that allowing St. Isidore to access generally available funds does not establish Catholicism as the official religion of Oklahoma. So this argument quickly loses steam before it can even leave the station.
The Supreme Court's recent cases point the way to allowing St. Isidore to participate. In 2017, the Court ruled that a church-run preschool couldn't be excluded from accessing state funding for rubberized playground surface material that the state of Missouri had offered to secular groups. Citing that case in 2020, the Court ruled that Montana parents have a right to otherwise available student-aid programs, even if they choose religious schools for their children. And citing both those cases in 2022, the Court ruled that Maine can't create a tuition-assistance program that allows parents to select secular schools but not religious schools.
The Supreme Court has clearly said that broadly available state programs should fund religious and non-religious institutions alike. Excluding religion is a violation of the First Amendment's free exercise clause.
If the Supreme Court rules in favor of the charter school board and St. Isidore, Oklahoma parents will have more education options for their children. Children will only attend St. Isidore if their parents choose it. If parents would rather send their child to a traditional public school, they can do so. If they want to sign their child up for a secular charter school, they can do so.
St. Isidore's state funding is tied to the number of students whose parents choose to send them there. The private choices of parents will determine the amount of state funding St. Isidore receives. If no parent chooses St. Isidore, it won't receive those public funds.
Parents know their children best, and if Oklahoma parents choose St. Isidore, Oklahoma law shouldn't stand in the way of that simply because the school—which accepts all students regardless of their faith—happens to be Catholic.
Drummond argues that government funding converts religious groups like St. Isidore into the government. But if that's right, it's bad news for religious freedom—and for underprivileged communities. Religious groups regularly work with the government to provide vital charitable work—including foster care, homeless shelters, and the like. But if the Supreme Court rules against St. Isidore, it could throw into question the future role of religious groups that provide these services.
On the flip side, allowing St. Isidore into the program would be a huge win for parents and families, promoting parental choice, educational diversity, and student achievement. It will also improve the lives of economically disadvantaged families and children by creating high-quality educational opportunities that are currently beyond their reach. Excluding religious groups from Oklahoma's charter-school program denies families these opportunities and causes real harm.
We are asking the Supreme Court to uphold the First Amendment, end this religious discrimination, and open these educational opportunities to families who so desperately need it. Fortunately, the High Court's previous cases already point the way there.
Jim Campbell is chief legal counsel for Alliance Defending Freedom (@ADFLegal) and counsel of record before the U.S. Supreme Court for the Oklahoma Statewide Charter School Board.
The views expressed in this article are the writer's own.
