The separation of church and state. It’s one of those phrases in American political life that often gets tossed around as some brilliant innovation of our founding years, like free speech rights or the right to bear arms. A defining characteristic of the American project, if you will. And there’s been no shortage of jurisprudence over the years on issues that seek to blur or sharpen the lines between our government and formal religious institutions.

But I’ll be honest, I’ve always been a bit baffled by this notion that our country has a “separation of church and state.” Sure, in some technical (and even still important) ways, it does. But it has always carried a deep, marked preference for Christianity writ large and that preference is accelerating.

So while we should separate government and religion, I would argue we don’t really in this country (at least we don’t try all that hard). But a new Supreme Court case, being heard in April, seems to indicate we’re about to give up on even trying as they weigh whether states must allow religious charter schools to exist.

What’s the Matter With Oklahoma?

The case in question comes from Oklahoma, where two Catholic dioceses applied to open a virtual religious charter school. They were in fact approved by the state’s charter school board. But a discerning attorney general sued to stop the school from opening due to its violation of state law and the US Constitution.

The Oklahoma Supreme Court agreed with their attorney general. And that should have been the end of it. But of course an insane case like this is never dead when you have our current Supreme Court. So now the case is, how do you say, resurrected?

I’ll unpack the particulars of why I label this case “insane” in a moment. But first, my ideological priors. I have no qualms noting I’m a deeply religious person. My faith is an integral piece of my identity and life. At the same time, I believe in the notion that our government should be secular and must protect public life from the imposition of one religious ideology over another, which by necessity means protecting public schools as nonsectarian spaces. (This matters in the context of charter schools because charters are public schools as currently constructed; this case threatens that fact.)

Public schools ought not to have any “evangelizing” influence over kids. Private schools are another matter. The Catholic dioceses at the heart of this case could have opened a religious private school. Nobody is telling them they cannot do school in the way religious private schools have done for centuries. But the Oklahoma attorney general is trying to stop them from creating a type of public school that is expressly designed as an evangelizing force for the Catholic church.

Unpacking the Religious School’s Core Argument

Now for the particulars I’m sure you’re eager to get to. In April, the Supreme Court will review two cases: Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond.

For starters, the proposed school in question (St. Isidore of Seville Catholic Virtual School) and Oklahoma’s charter school board are on the same side. They are opposed, and rightly so, by the robustly named Oklahoma Attorney General Gentner Drummond. Back in October 2024, the school and the charter school board approached the US Supreme Court to ask for this review. They did so by saying the Oklahoma Supreme Court, in its ruling against them, “unconstitutionally punished the free exercise of religion by disqualifying the religious from government aid.” There are a ton of great explainers about this case out there (including this one from Vox and this one from Education Week). Still, I’ll offer my two cents on that basic argument for why the US Supreme Court should hear this case. After all, this is what eventual jurisprudence will be forced to reckon with.

I find a lot of things wrong with the school’s main line of reasoning. Let’s start with the “free exercise” clause referenced there. That’s from the First Amendment to the US Constitution. It “protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of ‘public morals’ or a ‘compelling government interest.’”

So is an entity (a private school) to be considered a “citizen”? That’s a stretch for me (I know, I know, that ship has sailed with previous Supreme Court precedent, but it shouldn’t have and could come back to port, precedent be damned). Even if we gloss over the definition of terms, I see them arguing that “free exercise” ought to come with an expectation of government funding. I see zero reason why it should (for example, why would a church receive government funding just to operate as a proselytizing entity?), but this is to an extent another ship that has sailed in a direction I disagree with. For instance, recent years have seen Supreme Court rulings that say you can’t exclude religious schools from private school voucher programs.

There’s another layer though, because they are ultimately trying to accrue the benefits of being a public school without relinquishing their religious identity (more on that in the next section). In my mind, that makes what they are trying to do not so much a practicing of “free expression” as an “imposition of their ideology on society.” They want to jump from the private sandbox to the public sandbox but not follow the rules of the public sandbox. That does run afoul, for me, of “public morals” and “a compelling government interest.” Just imagine for a moment the right-wing reaction if this case involved a Muslim school trying to become a charter school. The Fox News headlines write themselves. And they would be ugly.

Realistically, none of what I’m saying here matters because the Supreme Court doesn’t tend to care about what the Constitution says or, you know, what words mean.

The Oklahoma Supreme Court’s Ruling

In a different world, one where the Supreme Court sucks a little less, this case would have ended at the Oklahoma Supreme Court. I entirely agree with that court’s ruling. They determined that approving a school as a charter school makes it a “state actor” since charter schools are definitionally public schools. In that sense, a religious school that becomes a charter school would cease to be a private entity that merely contracts with the state and is instead considered to be a public entity.

But then the problem becomes, according to the Oklahoma Supreme Court, that “St. Isidore is an instrument of the Catholic Church, operated by the Catholic Church, and will further the evangelizing mission of the Catholic Church in its educational programs.” [My emphasis added.] It would thus be an imposition of a particular religion (in this case Catholicism) on the public for this school to operate as a charter school.

St. Isidore is quite careful to note in their student handbook that they “will not deny admission to any student on the basis of race, color, national origin, sex, sexual orientation, gender identity, gender expression, disability, age, proficiency in the English language, religious preference or lack thereof, income, aptitude, or academic ability.” But the handbook also says the school “is a ministry of the Catholic Church.” Those two statements may not be contradictory according to the laws of language but they are incompatible in practice.

St. Isidore’s handbook also tries to claim they are a “K-12 religious charter school.” But that simply isn’t possible (I guess they share the Supreme Court’s view that words can just mean whatever you want them to). “Religious” and “charter” are incompatible terms in our current educational environment. If you mean to join them, you are fundamentally rewriting the meaning of “charter” or rewriting the meaning of “religious.” I certainly resist the former. I’m sure St. Isidore would resist the latter.  

[Brief aside. There’s actually a strange history of Catholic schools converting to charter schools in Indianapolis (and a couple other places around the country). It happened back in 2010 with Andrew Academy and Padua Academy. But in those cases, the Catholic schools became “secular” schools in order to operate as charter schools. They did not retain their religious identity nor did they operate as an evangelizing force. It’s worth noting the experiment didn’t work. Andrew Academy had its charter revoked four years later and Padua Academy converted back to being a Catholic school.]

Do We Have Any Idea How the US Supreme Court Will Rule?

Based on the Supreme Court’s recent rulings, it’s a pretty safe bet we’re in for a decision in favor of St. Isidore. There is one small wrinkle though. Justice Amy Coney Barrett already recused herself from the case (it’s complicated). That takes the 6-3 conservative majority down to 5-3. One flip and its 4-4. In case of a tie, the decision reverts to the previous ruling from the Oklahoma Supreme Court.

Honestly, I find the breathless coverage of Barrett’s recusal a little tiring. The conservative majority remains intact. There’s no reason to believe any of them will flip here given their clear ideological priors. So yes, the realist in me really does think we are about to face the existence of religious charter schools.

What Will Be the Impact on the Charter School Sector?

In a word, monumental. Michael Petrilli (of The Fordham Institute) wrote an excellent analysis of what’s at stake here. He emphasizes that the question isn’t whether states could allow religious charter schools if the Supreme Court ruled in favor of St. Isidore. It’s a question of whether they must.

Assuming a favorable ruling, religious charter schools would be legalized in 45 states (including Indiana) and Washington, DC immediately. Because of Indiana’s already incredibly generous voucher program, I doubt that Indiana in particular would see a massive influx of religious charter schools (though I can think of one that might try again). The bigger danger is to the charter school sector nationwide.

After all, religious schools aren’t beholden traditionally to the same expectations or regulations as public schools. Here’s Petrilli on some questions being begged by this case:

“The main [unknown] is whether religious charter schools will be allowed to prioritize members of their faith when admitting students. (Charter schools generally have to take all comers, and hold a lottery if oversubscribed.) Also, will they be allowed to exclude children or families that don’t abide by their values, including LGBTQ students or families? Could they hire only adherents to their religion as teachers and other staff? The Court—if it finds that states must allow religious schools—will need to spell all this out. If not, these questions are likely to be litigated for years to come.”

If the Court does spell any of that out (a big if), I have no optimism that it will be spelled out in a way that makes this new category of schools resemble public schools (you know, open to all, nondiscriminatory, etc.). And suddenly, every unfounded criticism of the charter school sector may become founded.