On May 22, 2025, the Supreme Court issued a succinct, one-sentence order ending the litigation over whether Oklahoma could fund St. Isidore of Seville as the nation’s first virtual faith-based charter school under the direction of the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.
The Justices simply announced that “[t]he judgment [of the Supreme Court of Oklahoma] is affirmed by an equally divided Court.”
The outcome involving St. Isidore is something of a surprise because, during oral arguments on April 30th, it appeared that a narrow Supreme Court majority would decide in favor of allowing the school to operate. The Court was deadlocked at four because, in an unanticipated twist, only eight of its members participated in oral arguments as Justice Barrett recused herself.
Although Barrett did not offer a reason for recusing herself, she apparently did so due to her friendships with former faculty colleagues at Notre Dame, who helped in St. Isidore’s defense.
In light of the outcome over St. Isidore, this column first briefly retraces the history of this dispute. The article then reflects on how this result might impact parental choice and religious freedom in education and whether it is a bump in the road or the end of aid to parents who wish to send their children to faith-based schools.
Charter schools
The charter school movement began in earnest in the United States in 1991 when Minnesota adopted legislation creating the first publicly funded schools of choice, affording parents greater options for educating their children.
Presently, laws in forty-five states and the District of Columbia permit charter schools.
Charter schools differ significantly from other public schools. While free from many state laws and regulations concerning staff and curricula, charter schools remain subject to federal and local antidiscrimination laws, such as those dealing with students with disabilities and employment. In return, charter school officials are accountable for the academic achievement of their students.
Charters vary in duration, typically ranging from three to five years, at which time they can be renewed or terminated based on whether they met their stated goals. Until Oklahoma attempted to create St. Isidore, charter schools had to, and still must, be nonsectarian institutions or can be closed for violating the First Amendment’s Establishment Clause.
St. Isidore
In the face of opposition led by state Attorney General Gentner Drummond, who filed suit challenging its existence, on its second attempt, Oklahoma’s five-member Statewide Virtual Charter School Board approved the creation of St. Isidore, named after the patron saint of the internet, in a three-to-two vote on June 5, 2023.
On June 25, 2024, in Drummond v. Oklahoma Statewide Virtual Charter School Board, Oklahoma’s Supreme Court, relying largely, but not exclusively, on state grounds, invalidated efforts to open St. Isidore for the 2024-2025 academic year.
With one member recusing himself, in a six-to-two order, depending on how one counts the two-sentence opinion of the justice who “concur[ed] with the Majority that Article 1, [§] 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian” but “dissent[ed] to the remainder of the Majority’s opinion,” the court invalidated St. Isidore’s founding.
The court concluded that because state law requires charter schools to be nonsectarian, “[t]he St. Isidore Contract violates state and federal law and is unconstitutional.”
As indicated, the Supreme Court agreed to intervene, affirming in favor of Drummond.
Reflections
It appeared from oral arguments that the Supreme Court would allow St. Isidore to open, continuing its expansion of the limits of aid to students and parents who wish to enroll their children in faith-based schools. Without written opinions, though, there is no rationale explaining how the Justices resolved the case.
The outcome in St. Isidore is surprising because, starting in 2016, in a trilogy of opinions written by Justice Roberts, the Supreme Court expanded the limits of aid. After emphasizing that officials in Missouri could not prevent a Lutheran preschool from participating in a program to improve playground safety solely because it was religious, three years later, the Court held that Montana could not exclude parents from taking part in its educational tax credit program to send their children to Christian schools. Then, in 2021, the Court found that Maine could not deny parents who lived in districts lacking public secondary schools the opportunity to rely on its tuition assistance law to send their young to faith-based schools.
During oral arguments, the Justices remained true to form as Thomas, Alito, Gorsuch, and Kavanaugh seemingly continued to favor aid. On the other hand, Justices Kagan, Sotomayor, Jackson— who have refused to permit assistance to faith-based schools—opposed allowing St. Isidore to operate. Interestingly, Chief Justice Roberts, author of the Court’s three recent opinions permitting aid, commented that St. Isidore’s creation seems like “much more comprehensive [state] involvement” raising speculation over his vote.
However, because the Justices issued an unsigned per curiam, or “for the Court” judgment, there is no way of knowing how they voted.
Four unanswered questions highlight why the result in St. Isidore is perplexing.
First, it is surprising, even disappointing, that neither Justice Thomas nor Justice Alito,, strong supporters of religious freedom in education, authored dissents to explain why the Court ruled as it did, leaving this as an open question.
Second, it is uncertain what impact Justice Barrett’s absence may have had on the Court’s deliberations.
Third, equally unclear is whether the Court is cutting back on its recent advances in allowing assistance or if it views the funding of an entire school, albeit virtual, as exceeding the limits of aid.
A fourth unresolved inquiry is whether the Supreme Court’s affirming that St. Isidore could not operate is a blessing or a threat to Catholic and other faith-based schools.
This is crucial because, on the one hand, Oklahoma would have apparently allowed St. Isidore officials to operate free from state oversight on matters such as curriculum, as well as whether teachers and other staff complied with Church teachings on such key matters as human sexuality. On the other hand, keeping in mind the anachronism that “control follows the dollar,” litigation continues in states such as California and Colorado, where public officials have unsuccessfully attempted to discriminate against faith-based schools.
As such, perhaps it is better to wait to see how the courts respond when challenges arise to options supporters devise as alternatives to what Oklahoma attempted. Patience may be the best approach in evaluating the Court’s judgment here because even as Catholic schools, in particular, face financial crises and declining enrollments, they, and other faith-based schools, remain free from state interference to operate in a manner consistent with their religious values.
However, on a more hopeful note, to date, at least 17 states have enacted school choice laws offering vouchers, education savings accounts, and tax credits. Moreover, supporters of educational choice introduced a bill promoting vouchers for non-public schools in the United States House of Representatives.
The outcome in St. Isidore is unlikely to be the last word on aid to parents who wish to send their children to a Catholic or other faith-based schools, and so this will continue to be an important issue to follow.
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I suppose there’s still a tax deduction for charitable gifts. If so, let the parishioners write out a tithing check to the parish and then let the parish fully fund the school. I have never liked the idea of using government funds for Catholic institutions (and that includes Catholic Charities, CRS, CCHD, and Catholic Legal Aid for Immigrants).
You must live in a rare parish, darling, to make such a statement. Most parishes have trouble making ends meet, between dropping attendance and the rising inflation rate. My parish is not making all the repairs I can see are needed because the funds are just not there from the parishioners.
Further, as someone who DID send my children to Catholic school, I resented paying exorbitant property taxes to my local public school district, and getting NOTHING for it. My athletically talented son was not even permitted to try out for the public school baseball team, because he was not enrolled as a public school student, even though he lived in the town to which we paid school taxes. (The loss was theirs. He eventually went to a Catholic division one college on an athletic scholarship.) If our children are not permitted to use the public school facilities for which we are taxed, and ALSO cannot use the funds for a Catholic school of our choosing, what exactly are we getting for our tax dollars? (In my case the school property tax right now sits at 9 grand a year for a modest home.)This feels very much like discrimination. To suggest people just continue to pony up more cash while getting nothing from the cash we ARE paying begs the question of fairness.
Amy Coney Barrett has been a major disappointment since her appointment to the court. So far she has proved useless in the clutch. Lets hope Trump gets another pick on the court sometime during these next 4 years.
LJ: You write: “My parish is not making all the repairs I can see are needed because the funds are just not there from the parishioners.” Then your fellow parishioners are certainly not tithing. Ask your pastor what the average weekly offering is from every family in your parish. If parishioners are contibuting only a paltry amount to the support of the parish, why should the parish struggle to keep a Catholic school open?
I guess I’ll just keep on repeating myself about this, but yes a parish tithing & stewardship program allows free tuition for every student regardless of income.
A dollar or two in the collection basket won’t do that.
Demographic shrinkage is starting to affect parochial & private schools also. Our little Catholic school closed down over a decade ago because of that. If we don’t think up a plan like stewardship/tithing it’s only going to get worse.
Although there is nothing in our Catholic Faith that precludes us from being Good Citizens in Heaven, or on Earth, thus Catholics, who are part of the Public, too, have a right to be provided with a Catholic Education, which is consistent with The Spirit of Divine Law, and does not serve to undermine our Catholic Faith and morals, perhaps this ruling was a result of the Covid debacle, which illuminated the fact that a virtual school cannot address the importance of children being physically present with other children and their teachers so that they may mature both physically, intellectually, emotionally, and spiritually, into Good Citizens and thus young gentlemen and young ladies, nor does it address possible harms , including possible future harm, that may result from being exposed to RF radiation from wireless devices for such a long period of time. Perhaps such a program would be beneficial as either a remedial or enrichment program, that would serve as a supplement to in school learning, for a short period of time, for example, an afterschool or summer program.
It is important to note, that unless the Judge had a personal financial interest in the school, such as being one of the founders , and stands to benefit financially, recognizing that there is nothing in our Catholic Faith that can possibly preclude us from being Good Citizens, is not in any way, shape, or form, bias. It is merely fact.
It is almost hilarious that while the word “democracy” is a ritual incantation for some folks, the judiciary issues idiosyncratic edicts without any accountability.
Furthermore, to overlook the fact that facts, being in essence, True, are not subject to bias , would be a substantive due process error.
Thanks for both comments.
In line with your thoughts, I hope there are creative ideas to save Catholic, and other faith-based, schools….with some visionary leadership.
I have a book in press on aid to faith-based schools in 14 nations (lost a few authors); countries such as Australia ad Canada provide much more aid than we do but they have very different systems. Let’s hope for better, eh?
Charlie
I am delighted with this decision. If the program had gone forward, the Church would have been opening herself up to unprecedented control of the school. After all, a charter school is a PUBLIC school. As the author (and many readers) know, I have been an indefatigable proponent of school choice for decades. The aid, however, must go to parents, never to the school directly.
I agree, Father. We ought to do away with public schools altogether. Parents ought to be directly given a certain amount for the education of all their school-age children. Let parents homeschool or else go into the marketplace to secure the best education for their children.
I fully agree. Parents should be able to use their tax dollars for the school of their choice, but NO to public involvement in our schools. Separation of church and state.
The purpose of education is to develop young gentleman and young ladies, who are intellectually and spiritually mature, so that they will be Good Citizens on Earth, and In Heaven , providing we desire to equip them with both the ability and desire to remain in communion with God, in The Unity Of The Holy Ghost, The Perfect Divine Eternal Love Between The Father And His Only Begotten Son, and thus, Cross The Bridge, Between Heaven And Earth that leads us To Salvation.
It is important to note, that unless the Judge had a personal financial interest in the school, such as being one of the founders , and stands to benefit financially, recognizing that there is nothing in our Catholic Faith that can possibly preclude us from being Good Citizens, is not in any way, shape, or form, bias. It is merely fact.
Furthermore, Judge Barrett erred when she believed it was necessary that she recuse herself, so perhaps this should be viewed as an error in substantive and thus procedural due process Law. One would think her error to recuse herself due to so called “bias”, to be both a constitutional error as well as a statutory one, since it is true that these so called “nonsectarian “ schools, by denying that God, The Most Holy And Undivided Blessed Trinity, ( 1.) In The Unity Of The Holy Ghost, The Spirit Of Perfect Divine Eternal Love Between The Father And His Only Begotten Son, Who Proceeds From Both The Father And His Only Begotten Son, those so called “nonsectarian” schools , by denying The Most Holy Blessed Trinity In The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, and thus The Author Of our inherent Unalienable Right to Life, To Liberty, And To The Pursuit Of Happiness, the purpose of which can only be what God intended, have, in essence created a god in their own image, which is a religion called paganism, the worshipping of false idols, which although it be false, is still considered a form of worship, making such worship a form of religion, and such schools that practice the worshipping of false idols , (including but not limited to pacha mama) promoting a specific type of religious belief, in providing a curriculum that is pagan, including all things pagan in their “academic knowledge, critical thinking and problem solving techniques “, and thus discriminate against the role that The Most Holy Blessed Trinity, The Creator Of All That There Is, Seen and Unseen, in imparting not just our inherent unalienable Right To Life, The Securing And Protection Upon Which Our Inherent Unalienable Right To Liberty And To The Pursuit Of Happiness Depends, but most importantly, our inherent Unalienable Right to come to Know, Love, And Serve The Truth Of Perfect Divine Eternal Love in this Life, so that we can, hopefully, be with God and our beloved for all Eternity , Perfected in Perfect Divine Eternal Love in Heaven.
(1.) See The Treaty Of Paris which ended The Revolutionary War, and was declared to be authorized in The Name Of The Most Holy Undivided Blessed Trinity