The Supreme Court's religious charter school ruling.

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This Friday.

We’re releasing a very personal piece from Executive Editor Isaac Saul this Friday. In a subscribers-only edition, Isaac will be telling his personal story of how he came to call himself a Zionist, and why the conflict in Israel has made him struggle with calling himself one today. 

Quick hits.

1. A federal judge struck down President Donald Trump’s executive order against the law firm WilmerHale for infringing on the constitutional freedoms of an independent judiciary. (The ruling) Separately, the Trump administration asked the Supreme Court to allow expedited deportations of migrants to countries other than their own. The request follows a federal judge’s order that migrants must be allowed a “meaningful opportunity” to object to their deportation. (The request)
2. Israeli Prime Minister Benjamin Netanyahu confirmed that Mohammed Sinwar, the leader of Hamas in the Gaza Strip, was killed in an airstrike last week. (The confirmation)
3. The Trump administration reportedly ordered United States embassies and consular sections to pause scheduling new interviews for student visa applicants as it weighs a policy to require all foreign students applying to study in the U.S. to undergo social media vetting. (The pause)
4. National Public Radio sued the Trump administration over its executive order ending public broadcasting funding. (The suit)
5. Health Secretary Robert F. Kennedy Jr. announced the U.S. Centers for Disease Control and Prevention will no longer recommend the Covid-19 vaccine for pregnant women and healthy children. (The announcement)

Today’s topic.

The Supreme Court’s charter school case. On Thursday, the Supreme Court blocked a religious online charter school from obtaining public funding from the state of Oklahoma. In a 4–4 decision that Justice Amy Coney Barrett recused herself from, the court affirmed the Oklahoma Supreme Court’s ruling that prevented St. Isidore of Seville — a Catholic online-only charter school in Oklahoma City — from receiving public funds. The court did not disclose how the justices voted in the case, only releasing a one-sentence opinion: “The judgment is affirmed by an equally divided Court.” 

Back up: In 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa founded St. Isidore of Seville Catholic Virtual School. The school takes its name from the “patron saint of the internet” and teaches a Catholic curriculum for grades K–12. Oklahoma’s charter school board approved St. Isidore’s application for public funding in 2023, but Oklahoma Attorney General Gentner Drummond challenged the approval, arguing it would provide precedent for Muslim schools to receive funding and destabilize the national charter school system. The Oklahoma Supreme Court sided with Drummond, finding that publicly funding an explicitly religious school violates the state’s constitution. The state charter board petitioned the case to the Supreme Court in October 2024, and the court agreed to hear Oklahoma Statewide Charter School Board v. Drummond in January.

If the Supreme Court had sided with the board, St. Isidore would have been the first publicly funded religious charter school in the country. Instead, the deadlocked decision does not set national precedent one way or another; it only affirms the Oklahoma Supreme Court’s decision not to publicly fund religious charter schools within the state.

Justice Barrett did not state why she recused herself, as is typical for Supreme Court Justices. However, she is close friends with an attorney who provided counsel to St. Isidore, and the school had been advised by a religious liberty clinic at Notre Dame’s law school, where Barrett taught. 

Many court watchers expected the Supreme Court to rule in favor of the charter board, as the court had ruled in favor of religious schools receiving public funding in three separate instances in the last decade: a 2017 case allowing a church preschool to access Missouri state funds to resurface its playground, a 2020 case permitting religious schools to participate in a Montana tax-credit program, and a 2022 case affirming Maine students could use vouchers at religious institutions. However, during oral arguments on April 30, Chief Justice John Roberts differentiated those cases by saying the prior three involved “fairly discrete state involvement,” while Drummond provided “much more comprehensive involvement.”

Proponents of religious charter schools were optimistic that they could succeed with a different challenge. “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,” James A. Campbell, a lawyer with the conservative group Alliance Defending Freedom, said.

Below, we’ll dive into what the left and right are saying about Drummond. Then, I’ll give my take.

Agreed.

• Commentators on both sides say the decision is somewhat surprising given the court’s past rulings on related issues. 
• However, many also suggest that the court is likely to rule for religious charter schools if it hears a similar case with a full bench in the future.

What the left is saying.

• The left is pleasantly surprised by the decision, though many caution that the broader issue raised by the case is not resolved. 
• Some suggest that religious charter schools will soon bring another challenge to the court. 
• Others argue that allowing public funding for religious schools would harm all parties involved.

In Slate, Mark Joseph Stern wrote “separation of church and state scored a surprise reprieve at the Supreme Court.”

“At oral arguments in April, it was clear that at least four conservative justices believed that St. Isidore had a right, under the First Amendment’s free exercise clause, to secure public funding. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh sounded convinced that the exclusion of religious schools from the charter system amounted to unconstitutional discrimination against religion,” Stern said. But “Chief Justice John Roberts sounded a tad wobbly during arguments, asking a handful of questions that indicated discomfort with the breadth of St. Isidore’s constitutional claims. It now appears that Roberts did, indeed, defect from the conservative bloc, siding with the three liberals.”

“The big question now is whether Barrett will share his hesitation in the future when the next ‘religious charter’ comes before the court. The network of Christian lawyers who manufactured this case will have little trouble persuading another state to adopt their experiment, and can surely avoid involvement by any of Barrett’s friends next time,” Stern wrote. “For the time being, however, Thursday’s decision is as big a victory as anyone can expect from this court for the separation of church and state. The conservative majority has been marching ineluctably toward a future in which there is no barrier between the government and religion—where, in fact, the Constitution requires the constant intermingling of the two.”

In Vox, Ian Millhiser called the decision “a rare setback” for the religious right.

“At oral arguments in Oklahoma, this case appeared likely to be the latest in a series of Supreme Court decisions mandating government funding of religious education. Most notably, in Carson v. Makin (2022), the Court held that states that offer private school tuition vouchers must allow those vouchers to be used to pay tuition at religious schools,” Millhiser said. “Though Thursday’s nondecision in Oklahoma means that this long-standing regime guaranteeing public schools remain secular institutions is still in effect, it is far from clear whether this regime will last.”

“While Carson held that states that fund private education must include religious schools in that funding, charter schools are considered public under both Oklahoma and federal law. Both federal law and the laws of 46 states also require charter schools to be non-religious,” Millhiser wrote. However, “it is likely that proponents of religious charter schools will simply try again to create such a school, this time without doing so in a way that causes Barrett to recuse. If Barrett is present for those future arguments and applies similar reasoning to the decision she joined in Carson, she could easily be the fifth vote for religious charter schools.”

In U.S. News & World Report, Eli Federman argued “religious charter schools undermine religious freedom.”

“Supporters of the Oklahoma school, St. Isidore of Seville Catholic Virtual School, mistakenly think religious charter schools would be a win for faith. But in truth, turning Sunday schools into public schools risks endangering religious freedom itself. Those with religious beliefs who want to educate their children in ways inconsistent with state requirements could be harmed the most,” Federman said. “The First Amendment’s establishment clause protects religious institutions by limiting the government’s involvement in and control over religious education. If faith groups begin running state-funded charter schools, they invite government oversight and risk losing the independence that allows them to stay true to their mission and values.”

“This ongoing battle reveals why the Supreme Court’s decision matters: If religious schools enter the public charter system, they will face even more direct state pressure to conform to secular standards. And once a charter school is established with public funds, disentangling it from state oversight to return to private support can disrupt the lives of students, teachers and communities that rely on those schools,” Federman wrote. “Meanwhile, under most state regulations, not all charter schools get approved; public authorities deciding which religious schools qualify risks unconstitutional government preference for one religion over others.”

What the right is saying.

• Many on the right are frustrated by the outcome but say it is only a temporary setback.
• Some suggest the court will rule for religious charter schools the next opportunity it gets.
• Others criticize Justice Barrett for her decision to recuse herself. 

The Wall Street Journal editorial board wrote “a religious charter school falls short at the Supreme Court.”

“The Supreme Court’s big religious-liberty case ended with a whimper Thursday, and what a pity. A ruling in favor of St. Isidore, a proposed Catholic charter school in Oklahoma, could have bolstered religious freedom and educational options. Instead the Court split 4-4,” the board said. “How did the Roberts Court’s remarkable run on religious liberty end here? The deadlock was possible because Justice Amy Coney Barrett recused herself from Oklahoma Statewide Charter School Board v. Drummond. She didn’t explain why, as is common practice at the Court.”

“Yet Justice Barrett’s absence and the anticlimactic outcome underscore the price of recusal for parties to a case. As Justice Antonin Scalia once pointed out, a party appealing to the Supreme Court needs five votes to overturn the ruling below, meaning a recusal is effectively the same as a vote to affirm,” the board wrote. “The lack of a decision means that the faithful in Oklahoma will be denied an opportunity to attend St. Isidore, but it isn’t the end of the road for free exercise of religion and school choice in an education landscape that’s changing rapidly. Similar cases could arise in other states, and Legislatures now have a window to adjust their charter laws to be more or less like Oklahoma’s.”

In The National Catholic Register, Andrea M. Picciotti-Bayer said “it’s only a matter of time” before the court hears a similar case.

“Four of the Court’s originalists — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — appeared to support St. Isidore’s certification as a charter school. They appreciate that because charter schools are privately created and privately controlled, they are not the government, and nor are they engaged in state action. They also appreciate that excluding religious schools like St. Isidore’s from participating in the state’s charter-school program is a form of religious discrimination. It’s likely that Justice Barrett would agree,” Picciotti-Bayer wrote. “By contrast, the Court’s three progressives — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — were more than satisfied with excluding St. Isidore’s.”

“If Roberts did vote against St. Isidore’s request for fair treatment, that is a great disappointment, particularly because he was the author of two recent school-choice cases in which the Court held that excluding religious schools was deemed unconstitutional,” Picciotti-Bayer said. “It’s only a matter of time before a case questioning the constitutionality of excluding religious schools from charter-school programs is before the high court once again. When that time comes, let’s hope that Justice Barrett is on the bench and Chief Justice Roberts allows fairness and religious freedom to win the day.”

In National Review, Carrie Campbell Severino explored “the consequences of unnecessary recusals.”

“The reasons for [Barrett’s] recusal are not certain but are presumed to stem from her friendship with Professor Nicole Garnett at Notre Dame Law School. Garnett has been supportive of St. Isidore but is neither a counsel nor a party in the case. Interestingly enough, in Carson v. Makin (2022), a case dealing with similar issues, she signed an amicus brief and there were no recusals—nor should there have been,” Severino wrote. “Even if she were an advocate in Oklahoma Statewide Charter School Board v. Drummond, it should not have made a difference. Recusal because a friend has had some connection to the case—but is not a party—has never been the practice.”

“An enormous amount of time, money, and effort were spent on this case, only to have it end without resolution. No clarity has been provided for other states, or for that matter Oklahoma itself. The school is being deprived of its constitutional rights and cannot now vindicate them in court. Going beyond her duty to recuse could have pernicious long-term consequences if other justices were to do the same,” Severino wrote. “As the Court itself has noted in its Code of Conduct, ‘the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.’”

My take.

Reminder: “My take” is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• I think the legal merits of the case support the outcome.
• The practical outcome is going to be short lived and narrow, as a future case involving Barrett will probably succeed.
• I support this decision, and hope against odds that the court rules similarly in the future.

At first blush, this feels like one of the most significant recusals by a Supreme Court justice in recent memory.

The separation of church and state was set to take a major blow in this case, and liberal commentators were ready to cede a loss. Instead, they got a surprise victory. That win was narrow (applying just to Oklahoma) and may be short lived (as a new, similar challenge will almost certainly pop up), but at the very least it means a similar future case will be no slam dunk. And we know that whoever brings it will need to win over Amy Coney Barrett.

For Drummond, as with most court cases, it’s useful to apply our standard two-part analysis: a view on the legal arguments, and one on the practical outcome. 

On the legal merits of the case, I’ll say up front that I thought the Oklahoma Supreme Court was right to invalidate St. Isidore’s contract with the state. Oklahoma law requires charter schools to be non-religious; St. Isidore was seeking a public-school structure and government funding to teach an explicitly Catholic curriculum, which students were going to be mandated to participate in. The state supreme court ruled that the school was going to provide public education as a surrogate of the state, which means it would have been a public entity that did not have any right to the free exercise of religion.

This all makes plain sense to me. But of course it’s not quite so straightforward, or it wouldn’t be before the Supreme Court.

Representatives for St. Isidore argued that charter schools are not state actors — instead, they are privately operated schools that are given government contracts to provide publicly funded education. That view does have some precedent to support it, and the justices on this Supreme Court have been very friendly to groups arguing that religious institutions are entitled to the same educational funds that are available to their secular counterparts. The school also argued that none of the factors the court normally considers to determine if a private entity is a state actor (such as being intertwined with a government or performing an exclusively public function) are satisfied here.

After reading the details of these arguments, my overwhelming feeling is that St. Isidore is trying to blur the lines on public and private education — trying to have their cake and eat it, too. They want government funding, but they also want to be able to teach whatever they want and how they want. In the most straightforward sense, I find this unacceptable. 

If my tax dollars are going to fund your institution, then I should get a say in how it runs. My money goes to public schools, and I get to vote for people who implement educational programming or join the school board. My money goes to the military, and I get to vote for the president who will choose its leaders. My money goes to a charter school, and… they get to teach whatever religion they want, without any input from me? I don’t think that’s right.

Even — perhaps especially — as a person of faith, I want church and state to remain separate; I find its value to the government and the public obvious, but the principle also helps religious institutions, too. Roger Williams, the founder of Rhode Island who is widely considered the first proponent of this separation, understood its value from the beginning. As far back as 1644 he was arguing that mixing church and state corrupts the church, and when you mixed religion and politics, you always got politics. 

I believe these arguments have stood the test of time. Specific to the case at hand, Eli Federman (under “What the left is saying”) summed it up better than I could: “The First Amendment’s establishment clause protects religious institutions by limiting the government’s involvement in and control over religious education. If faith groups begin running state-funded charter schools, they invite government oversight and risk losing the independence that allows them to stay true to their mission and values.”

As for the practical impact, I think it will be small and temporary. I suspect, given the makeup of this court and the way they have ruled in similar cases, another state will bring a similar challenge and probably prevail with Justice Barrett’s vote. But again, if that does happen, it will be a mistake; it will be bad for the charter schools and religious institutions in the long term to subject themselves to government oversight of this kind, and it’ll be unfair to the taxpayers who should not be forced to fund schools and institutions that are teaching religious doctrine. 

So, for now, I’m happy to see Barrett’s recusal led to Oklahoma winning this case, but apprehensive about how narrow and temporary that victory really is. 

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Your questions, answered.

Q: I would like to read your thoughts on how name, image and likeness (NIL) is/will impact athletics (current $ allocations largely go to males) and intertwining of the reallocation/elimination of Education Department with its role in Title IX, President Trump’s policies and his ruling on NIL money not under Title IX. 

— Lark from Iowa City, IA

Tangle: This is a complex question — the way that NIL impacts college athletics in and of itself is complicated, and will produce a variety of different opinions. When you add in the potential of the government changing the program, it gets vastly more complicated.

Let’s back up: NIL deals allow college athletes to profit off their name, image, and likeness without being paid directly by colleges. Proponents see it as a way to compensate athletes who otherwise wouldn’t receive any of the revenue they generate for their universities, conferences, and the National Collegiate Athletic Association (NCAA). Opponents of NIL say that it threatens the very nature of the student-athlete relationship, benefits the top-tier programs that can allow the athlete to make more money, and potentially creates a Title IX issue by generating greater revenue for male athletes.

President Trump is attempting to shutter the Department of Education, which enforces Title IX, and has proposed a commission to reform NIL deals at the NCAA (Trump is generally opposed to NIL deals). However, that commission has been paused as Sen. Ted Cruz (R-TX) works on passing legislation to regulate the practice (Cruz is generally in favor).

Our staff has a variety of different opinions on NIL, though we all generally agree that athletes should receive some kind of compensation for creating an industry that profits immensely off their skills; we also agree that NIL has paved the way for unethical recruiting practices and weakened intercollegiate competition. As for what happens next, it seems like the options the government is considering are all still pretty speculative. Reading the tea leaves, the most likely change is the one that’s already occurring: less power for the NCAA and individual schools, more power for conferences.

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Under the radar.

After multiple years of enlistment shortfalls, the U.S. military spent more than $6 billion over the past three years to recruit and retain service members. In particular, the Army, Navy, Air Force, and Marines have rolled out new programs and increased the number of recruiters while creating new financial incentives for soldiers to stay in the armed forces. The Navy, which has had some of the largest enlistment and retention gaps, outspent all other branches and placed an emphasis on filling its at-sea jobs. The investments appear to have been successful, as all branches but the Navy met their recruiting targets last year, and all are expected to do so this year. The Associated Press has the story.

Numbers.

• 3%. The percentage of appeals heard by the Supreme Court since 2018 in which a justice recused themselves, according to a 2023 Bloomberg Law analysis. 
• 180. The number of times a Supreme Court justice recused themselves in the court’s term ending in June 2016, according to Fix the Court. 
• 98. The number of cases in which Justice Elena Kagan recused herself during that term, primarily due to her previous work as solicitor general.
• 31. The number of cases in which Justice Samuel Alito recused himself during that term, most often due to stock ownership.
• 8,146. The total number of Catholic elementary and secondary schools in the United States in the 2000–01 school year.
• 5,920. The total number of Catholic elementary and secondary schools in the United States in the 2022–23 school year.
• 77%. The percentage of K–12 private school students who attended a religiously affiliated school in the 2021–22 school year, according to Pew Research.
• 7%. Charter school enrollment as a percentage of total U.S. student enrollment in the 2021–22 school year.

The extras.

• One year ago today we wrote about Israel’s Rafah strike and gave an update on the war.
• The most clicked link in yesterday’s newsletter was our video on fluoridated water.
• Nothing to do with politics: The largest organism on Earth may surprise you.
• Yesterday’s survey: 2,247 readers answered our survey on when Russia and Ukraine will reach a peace deal with 38% saying they are unsure or have no opinion. “I'm honestly not sure if peace is possible while Putin leads Russia,” one respondent said.

Have a nice day.

Rose Tourje was appalled to learn that when a company moves out of a tenant space, the furniture often ends up in a landfill. In response, she founded an organization called ANEW with the goal of extending office furniture life. ANEW works to repurpose, resell and recycle corporate surplus furniture that otherwise would have gone to waste by finding charities, nonprofits, and public agencies in need. ANEW says it has worked with over 2,000 recipient organizations in 20 countries and saved 8,000 tons of would-be waste in the past 10 years. Good News Network has the story.

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