Liberal Supreme Court justices grill religious institution in landmark school choice case

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Supreme Court to review case on publicly funded faith-based school

Gov. Kevin Stitt, R-Okla., and Oklahoma mom Shelley Gwartney join 'Fox & Friends' to advocate for the publicly funded Catholic charter school, which could be a 'game-changer' for school choice. 

A trio of left-leaning Supreme Court justices grilled lawyers for a Catholic charter school Wednesday in a landmark school choice case, capping a month of high-stakes arguments, emergency orders and unusually sharp exchanges between the bench and bar.

Justices Kentanji Brown Jackson, Sonia Sotomayor and Elena Kegan questioned whether the nation's first religious charter school should be eligible for state funding despite the school's religious teachings. They also pressed attorneys for the school on how they would treat students with different religious backgrounds who might opt to attend.

At one point during oral arguments, Justice Ketanji Brown Jackson pressed Michael McGinley, an attorney for St. Isidore of Seville Catholic Virtual School, on their contention that charter schools are being "discriminated against" under the Free Exercise Clause of the U.S. Constitution.

Jackson zeroed-in on an apparent contradiction in the school's argument. At the same time St. Isidore argues it is being discriminated against by the state, she said, it is also asking the Supreme Court to grant it an ability that "no one else has" – the ability is to establish and operate a school in Oklahoma funded in part by the state.

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The U.S. Supreme Court building (Anna Moneymaker/Getty Images)

"Now, in this case, St. Isidore doesn't want to establish a secular school, which is what the public benefit is. Instead, they want to establish a religious school," Jackson said. 

"So as I see it, it's not being denied a benefit that everyone else gets. It's being denied a benefit that no one else gets, which is the ability to establish a religious public school," she added.

McGinley responded that Oklahoma’s state-created charter school program can’t be limited to nonsectarian schools, since that would be a form of discrimination.  "When you open a program to other private organizations, you can’t exclude the religious," he said.

Justice Sonia Sotomayor also asked about students who don't share in the religious beliefs of the school, which states on its site that it "fully embraces" Catholic Church teaching and "fully incorporates" them "into every aspect" of the curriculum, including with Mass.

"What would you do with a charter school that doesn't want to teach evolution, or it doesn't want to teach history, including the history of slavery, or it doesn't want to include having children of another faith in them, as this one does?" Sotomayor asked McGinley and James Campbell, representing the. religious schools.

"This one does not say it won't exclude children of other faiths," Sotomayor continued. "But it said, if you want to attend this school, you have to attend Mass."

"You have to accept the teachings of the church with respect to certain principles. So is that something you look at?"

In response, Campbell noted that the school does not require students to affirm its religious beliefs.

St. Isidore "allows exceptions for anyone that doesn't want to attend Mass," he said, and says "point-blank" in its handbook that there is no requirement that a student must affirm the beliefs of the school.

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Justice Sonia Sotomayor during the formal group photograph at the Supreme Court in Washington, D.C.,  on Oct. 7, 2022. (Eric Lee/Bloomberg via Getty Images)

At issue in the landmark case is a virtual Catholic charter school in Oklahoma, St. Isidore of Seville Catholic Virtual School, and whether the school is eligible to receive public funding because of its religious teachings.  The Supreme Court's decision is expected to have major implications for the rest of the country, and comes at a time when 45 U.S. states currently authorize charter schools. 

Lawyers representing the school have argued that it is operating like a private actor working under a contract with the state, and asked the high court on Wednesday to overturn an earlier decision by the Oklahoma Supreme Court.

St. Isidore's attorneys argued that just because they receive state funding does not mean they are a state actor. They also noted recent Supreme Court precedent, which they said has been in their favor.

This court has "repeatedly" held that "a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits," Campbell said Wednesday.

The case pits two First Amendment protections against one another – the Establishment Clause, which prohibits state governments from favoring or endorsing one religion over another; and the Free Exercise Clause, which establishes the right of individuals to practice their religion freely and without government interference that unduly burdens them from doing so.

During oral arguments Wednesday, the justices focused on two major questions. The first is whether charter schools should be treated as public schools, which are considered extensions of the state, and therefore subject to the Establishment Cause and its ban establishing or endorsing a religion, or whether it should be considered a private entities or contractor.

If justices back St. Isidore's argument, that it should be considered as a private entity, then the second question is whether Oklahoma’s actions violate the Free Exercise Clause of the Constitution, by placing what the school argues is an undue burden on its religious mission. 

Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)

The Oklahoma Statewide Virtual Charter School Board approved St. Isidore's contract request in June 2023, making them eligible to receive public funds.

But its ability to receive it was later blocked by the Oklahoma Supreme Court, which ruled that using public funds for the school was in violation of the Establishment Clause of the First Amendment. That argument was appealed to the Supreme Court, which agreed to hear the case last October.

Oklahoma Attorney General Gentner Drummond has argued that the school would be a state actor if it received state funding. "Charter schools no doubt offer important educational innovations, but they bear all the classic indicia of public schools," Drummond argued in an earlier Supreme Court filing.

If its "charter-school law violates the Free Exercise Clause, then this is one of the most far-reaching free exercise violations in the nation’s history," he argued.

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"No student will be compelled or placed in a charter school except by private choice," McGinley told justices shortly before oral arguments concluded, noting that in contrast, "a ruling for us will only increase choice."

Fox News's Anders Hagstrom contributed to this report.