The Supreme Court Debates St. Isidore, the Religious Charter School
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From the opinion pages of The Wall Street Journal, this is Potomac Watch. The Supreme Court wrestles with what could be a landmark case on whether charter schools are public or private and whether Oklahoma can deny a charter and public funding to a proposed Catholic virtual school.

Welcome. I'm Kyle Peterson with The Wall Street Journal. We are joined today by my colleagues on the editorial page, Nicole Ault and Kate Batchelder-Odell. The growth of charter schools has been a huge story in American education in recent decades. They operate under a government charter and with taxpayer funding, but the management and the operation of these schools is often undertaken by private groups, non-profits,

and usually with more freedom from regulations and union rules than in traditional K-12 public schools.

The National Alliance for Public Charter Schools says there are now about 8,000 of them in the United States with a quarter million teachers and close to 4 million students. But the Oklahoma Supreme Court ruled against a charter application for St. Isidore of Seville Catholic Virtual School, which wants to teach religious doctrine. The state Supreme Court saying that that's because the state considers charters to be government schools. It can require them to be secular.

So are charter schools public or is this discrimination against a private religious nonprofit? Let's start with some audio from the oral argument this morning. This is Justice Katonji Brown Jackson taking that first argument. The state of Oklahoma defines its charter school on the basis of what federal law has defined as a charter school. It's a public school created or adapted by a developer, private organization, organization

and to qualify the school must not charge tuition and must be non-sectarian in its programs, admissions policies, employment practices, and all other operations. And so that's like what it is. And so it just seems to me very hard to accept the discrimination principle that you're putting forward when you come in and say we don't want that contract, we want one that we've tailored to strike out

some of the terms that you have put in here. And here on the other side of the bench is Justice Brett Kavanaugh. Our cases have made very clear, and I think those are some of the most important cases we've had, of saying you can't treat religious people and religious institutions and religious speech as second class in the United States. And when you have a program that's open to all comers, except religion, no, we can't do that. We can do everything else.

That seems like rank discrimination against religion. And that's the concern that I think you need to deal with here. Nicole, you've been following this case. Tell us a little bit more about St. Isidore, who set it up, what they want to do and what it is now arguing at the U.S. Supreme Court. Yeah, thanks, Kyle. So St. Isidore is a virtual organization.

or online charter school that two bishops, one from the Diocese of Tulsa and the other from, I believe, the Diocese of Oklahoma City, want to open in Oklahoma. They submitted their application to the Oklahoma Statewide Charter School Board, which approved it in 2023, even though St. Isidore was unapologetic about their plan to

teach Catholic doctrine and the evangelizing mission of the church. But yeah, then the state attorney general sued to stop it, citing Oklahoma law, which requires charter schools to be non-sectarian, as well as the establishment clause of the constitution. And

And Saint Isidore is claiming that they have a free exercise right to open, basically making the argument that Justice Kavanaugh made in the clip we just heard that if the state is offering a public benefit, they can't exclude an organization just because of its religion. And that's what Saint Isidore is claiming Oklahoma is doing here. There is a pretty good line of cases on that point, Kate.

starting with one in 2017, Trinity Lutheran. That was Missouri. There was a grant program, public money going to playground resurfacing, and Missouri thought that it could deny that to a religiously run preschool. The Supreme Court said,

no way to that. Then the Supreme Court extended that case in a couple that are a closer fit here. Montana and Maine had programs where they were giving parents, families tuition money basically to take to a private school of their choice, but they were excluding religious private schools from that. And so the argument here is that this also similarly applies to St. Isidore, which is applying to

open a charter school in Oklahoma's kind of all comers, I think is the term Justice Kavanaugh used, all comers policy. And that based on these previous rulings, there's no way that Oklahoma can deny that because it can't exclude a religious applicant just because it's religious. Right. I mean, I think the court would be building on its precedent to say that

You don't have to offer a benefit, but if you do offer the benefit, you can't deny it simply because someone is religious. When you look at Oklahoma and how it has set up this system, they do, like you said, allow what you might call an all-comers policy. If you satisfy the requirements, you can get approved to run a charter school. And so one of the things that the advocate for the school this morning in oral arguments was emphasizing was that schools that value Spanish immersion, there's a Levant school that was approved. There is a school...

run by a Native American tribe to impart culture and tradition, that all of these educational values are allowed under the state law, but the only one that is not tolerated is a religious education. And so I think also that pretty clearly, but what I just laid out and how anybody can really apply if they meet the requirements, that also really compromises the argument that what we're dealing with is an establishment clause case.

Because not only is Oklahoma here not establishing a religion, it's allowing a thousand flowers to bloom under its policy. And in fact, the state AG, when he's been making the case against allowing this charter school, he's been saying, well, you would have to allow Muslim schools to open as well. And Oklahoma's answer to that appears to be yes.

Right. And so I think this reality of how the school is structured really makes a tough road to hoe as an establishment clause case and gets back to that question that is the one of the two the court's going to consider, which is whether denying the school is really tolerable under the free exercise clause. Hang tight. We'll be right back in a moment.

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Welcome back. On that point about the comments by the attorney general, these are in the briefs by those supporting St. Isidore. One thing that he said was that if St. Isidore wins, it would require Oklahoma to approve charter schools by all faiths, quote, even those most Oklahomans would consider reprehensible, unquote, including, quote, extreme sect.

unquote. So I take the point that Kate is making that it is a strange sort of establishment case if the establishment is everyone who wants to open a charter school. Nicole, what is the Oklahoma Attorney General arguing and what's his case that these really are, in his view, state schools? Yeah. So he's pointing out all the ways in which Oklahoma law regulates charters in similar ways to

to how they regulate traditional public schools. And there are a lot of regulations that apply to both. They are subject to the same civil rights laws and non-discrimination laws. Oklahoma law does say, as mentioned before, that charges must be non-sectarian, just like traditional public schools. The state

grants charters or can deny them. It can shut charters down for cause. The statewide charter board is able to audit charter schools and open records laws apply to the charter school board. So there are a number of significant regulations from the state on Oklahoma charters and the AG is saying that this makes charter schools public schools essentially, along with the fact that they

are taxpayer funded and they're open to all students. And in his argument, they help fulfill the state's duty to provide free public education. There are a couple of different strands of legal arguments that are coming up in these cases. One of them is

whether charter schools qualify as a governmental entity. So something like Amtrak or something like that. And another is whether they qualify as state actors. So there have been some precedents about the government basically outsourcing some services. There's one on medical care in prisons and the

judiciary has held that someone providing medical care in a prison may be a state actor and functionally working as an arm of the state, even if they're under some private contract and working for a private company. Kate, also some dispute at the oral argument about

the curriculum approval. The attorney general saying that charters have to submit their curriculum and it has to be approved. And so there's arguments about if the same is there wins, what about a charter school that comes and says, we don't believe in evolution and we don't want to teach evolution. And the state says, well, that's part of our state school charter standards. Future cases down that road.

The advocates of St. Isidore are also suggesting to the contrary that this review of curriculum is more high level. You know, we're going to teach X, Y, and Z and not really digging into which textbooks and worksheets and homework folders and stuff are going to actually be sent out to the students.

Well, right. I mean, the charter school is arguing that the state is basically exercising contractual oversight, but that they're not a state actor. I am persuaded by that claim and think just normatively speaking, classifying them as a state actor could be a regrettable precedent for some policy reasons. I mean, for instance,

I follow this case less as a legal expert and someone who follows upward mobility and the civic condition of the country. And school choice is essential to fixing some of those problems. And so I bring up that question of whether charter schools are state actors, because if they are state actors, and if we start to take

a very expansive view of anytime you kind of work with the government and provide a service that the government also provides, that could infringe on some other public work that I think is important. And what I mean, for instance, let me give you a hard example. It's just the social safety net right now is largely cash assistance, but really needs a lot of experimentation to help Americans in different ways. Basically now people are, I know I'm getting far afield, but I'll land the plane. People are now less poor, but they need help

with social capital and connection and other things, there's this huge avenue for religious groups to provide services and help Americans under the social safety net in a way that we traditionally consider, you know, a government function. And so I am persuaded by some of the amicus briefs, or at least concerned by some of the amicus briefs that say, if we start classifying charter schools as public estate actors here, we're

We're going to ensnare other behavior, other religious groups that are providing state services as private organizations and clamp down on that activity, which we shouldn't do. I think that's a great point. And the justices were clearly concerned about that. You heard them ask, for example, about what about a religious group?

that has a government contract to help facilitate foster care and is doing so under the supervision, very close supervision maybe, of the state in question. Does that make them a state actor in the same sort of way? You've also seen some cases percolating. There was one, I think, in the Fourth Circuit about whether charter schools can have

dress codes or whether seeing a state actor means that they cannot have a gendered dress code anymore, even if that's what the people operating the school. And by the way, the families who are opting in and choosing to go to the charter school think is the best educational environment or at least one that's working for them. Similar questions about

single sex charter schools, which I understand exist in at least some states, whether those would be permitted if these charter schools are government actors or state entities. On the other hand, questions about how if the Supreme Court rules that St. Isidore can go ahead, that it is not a state actor.

Also questions about how that might upend the charter status quo, to put it that way. And Nicole, interestingly, not all the charter advocates are on the same side of this case. So what are some of the concerns that they're raising about what might come afterward? Yeah, so we actually had an op-ed in the paper today from Starlee Coleman, who's the head of the National Alliance for Public Charter Schools.

making the point that if the court rules for St. Isidore here, other charters might have to worry about whether they can stay in business. And one of her main arguments is that a lot of states define charter schools as public schools in state law and say that they must be non-sectarian. And so if the court says that charter schools are private schools or that they can be religious, are these charters going to lose their access

to state funding that depends on them being public and non-sectarian. There's also a concern that some states may be totally fine with having religious charter schools, but other states likely won't be. And so if they feel that there's a threat that they will have to

assent to a religious charter school, they might prefer to just shut their charter school program down entirely. Or they might exert so much control over their charter schools, maybe appointing board members or some other kind of control that makes it clear that charter schools are government entities and therefore don't have First Amendment rights. And that's not something that charter schools want either. They want to have freedom to innovate and have some flexibility from state oversight.

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Welcome back. The difficulty of trying to figure out what the consequences of a ruling either way, Kate, is that there were 50 state laws, 50 state charter situations. There were some references to California system, which I don't know in great detail, but some references in the oral argument that maybe they have more public characteristics and a case about a religious charter applicant in California might come out a different way. But I do wonder if

about the potential reaction if charters are deemed to be private actors, essentially by the Supreme Court in this case. If there is a state that says, "Wait, hang on. We opened charter schools. We passed our charter law originally intending for these schools to be part of our public school system." And if the legal doctrine has shifted and now they're going to be deemed

private actors, we're going to have to revisit that law. And there were some questions from the justices about what that might look like. If St. Isidore is a private actor, then what would it take to convert it into a public actor? And I mean, I do worry, Kate, that if that happens, and there will no doubt be a huge political debate if state legislatures decide to go down that road. But if that happens, that could be a loss for

for school choice because the whole point of the charter movement was to get some schools that are outside of the control of the teachers unions, of the education doctorates, let some people with MBAs and other ideas run some schools and see how the results came in. And the results

I think on the public research of how charter schools are doing in terms of test scores and stuff are pretty good. And certainly in terms of attracting parents, parents who are choosing charter schools, that is the real proof in the pudding. And so if you do have a response to this, which is some states, maybe blue states, let's say, revising their charter laws so that all the charter boards now have to have

I don't know, half their board members appointed by the governor or a public charter authority. I do wonder if that would sort of defeat the whole thrust of the charter movement in the first place. Well, I don't think it's the Supreme Court's brief to try to stop the school choice movement from making a political mistake. And so I think there is some merit in separating out kind of the legal questions about what does the First Amendment tolerate and what might be the political consequences of a decision that recognizes a religious charter. But I thought

You know, the question on, you know, what will the boomerang be, the political boomerang or the backlash to this be? I thought the advocate for the charter made a pretty good point that states could respond to this by exerting much more control over their charter schools. But there would be tradeoffs to that. And part of what has made charter schools successful and part of what states are looking for are schools that operate free from the strictures of traditional public education that have made

public education system more of an educator of last resort. So there would be trade-offs to doing that. I also think, paraphrasing what Justice Alito said when he overturned Dobbs, we can't pretend to know what the political consequences will be. And even if we did, we shouldn't act in accordance with them. But

I do think there's also a possibility that that backlash is a little bit different than how it's currently being portrayed, which is that states will walk back their school choice programs. One reason I think that is because right now the country's really polarized on how to educate children. The Supreme Court was hearing a case pretty recently about some of the ability to opt out from books that are being read that parents don't like. And so it might

be the American public is more willing than we think to tolerate a wide variety of model schools if it allows sort of a venting for these differences and how people want to educate their children. So I'm not sure that would be the required political backlash of this, but I do think it is certainly a possibility. And it's one reason, I think, to Nicole's point, why some of the charter schools are getting involved. But

I think that is regrettable on their part because I think the charter movement has typically been most successful as a really big tent. And this school that wants to be part of the movement has every right to try to vindicate its interest in court. One other important thing to keep in mind about this case is that Justice Amy Coney Barrett is recused. My understanding is that she has not explained why, as is typical when Supreme Court justices

recuse from cases. It could be some ties to the lawyers on behalf of St. Isidore. That's been suggested. But Nicole, part of why that is important is that makes possible a 4-4 deadlocked outcome. And when the Supreme Court splits 4-4, that essentially lets the lower court opinion stand, which would be a loss for St. Isidore. The Oklahoma Supreme Court's ruling would stay in place.

And two, that makes this case hinge maybe essentially on Chief Justice John Roberts, who is sometimes kind of in the center of the court, at least lately, now that we have a 6-3 conservative court is no longer the 5-4 that he enjoyed back in the days when he was upholding Obamacare.

But Chief Justice John Roberts has not, I think, been a squish on religious liberty. He wrote some of those cases on these tuition assistance programs. Here is one from a few years ago. The chief justice writing, we have repeatedly held that a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits, unquote. And I find him, Nicole, in this argument,

A little tough to read. I mean, he seemed clearly concerned that if St. Isidore is a public actor, then what about those agencies doing foster care and so forth? On the other hand, one of his opening questions was to the effect of, isn't this different given how closely involved the state is with the chartering process? Isn't this different?

than those previous precedents, those recent ones we have laid down. So, Nicole, it's going to be fascinating to watch how the justices parse this. But the thing to keep in mind is that a 4-4 outcome is always possible. Yeah, I think that's right. I think the liberal justices today in oral arguments seem to make clear what they think on this issue. And Justice Kavanaugh and Justice Alito were a little easier to read as well. But

harder to read the Chief Justice. So we'll see. If it is a 4-4 split, then the Oklahoma Supreme Court ruling stands and St. Isidore can't open. And the concern that St. Isidore presents from that is not always a discrimination on the basis of religion, but

But also hundreds of students who would love to attend a Catholic charter school at no cost will not be able to do so. And so that would be a loss for choice. Kate, any last thoughts? Anything else that jumped out at you for moral argument? Or maybe you are better at reading the Chief Justice's poker face than I am. Sorry.

Certainly not. Like I said, I'm a more detached observer than both of you are of this. I do think, you know, a 4-4 outcome where it's deadlocked and the charter school doesn't get to open, that is a real possibility here. And, you know, to the extent that there's been criticism of the court and the direction it's moving on religious liberty, it's been that, you know, the religious claimants didn't

tend to win. And so you can't cynically rule out that perhaps there's some interest in this case as making a more clear dividing line that religious claimants don't always win and that there are limits on where the court is willing to take this. I think that's a distinct possibility. But I do think as we've been talking about, though, given the problems in the public education system, you

We really want to be working to the maximum extent possible in the constitutional order to allow a lot of different educational options to bloom and give people more ability to get a good education at a lower cost. And so I do think any analysis that doesn't rule for the school really would have to be rooted in an iron case based and rooted in the First Amendment. And that's the case I'm struggling to see here, because I think the free exercise case

And the argument the court has been advancing that free exercise means more than your right to just worship on Sunday. And it means something involving public participation in the public square. I think that's been compelling. And I think to Kavanaugh's point, it's been, you know, one of the court's finest hours.

over recent years. So I think there's a lot at stake here. And either way, the court is going to have to wade into these issues again and on second and or third order effects. So they should do what the First Amendment requires of them and worry about those hypotheticals as those cases percolate. Thank you, Kate and Nicole. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back tomorrow with another edition of Potomac Watch.