On The Front Lines

U.S. Supreme Court Deadlock Leaves Religious Charter School Debate—and Free Exercise Rights—in Limbo

WASHINGTON, DC — In a closely watched case with broad implications for religious liberty and the separation of church and state, the U.S. Supreme Court has deadlocked on whether states can prohibit religious charter schools, leaving unresolved questions about the First Amendment’s Establishment and Free Exercise Clauses.

The 4-4 tie in the consolidated cases of Oklahoma Statewide Virtual Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond keeps in effect a ruling by the Oklahoma Supreme Court. That court held that a state-funded religious charter school would violate the Establishment Clause of the U.S. Constitution. Because the Supreme Court issued no majority opinion, the Oklahoma decision stands—but only within the state—and the issue remains open for future litigation. The Rutherford Institute, which filed an amicus brief in support of the religious charter school, warned that the state’s denial of a charter based solely on the proposed school’s religious focus and instruction while allowing other charter schools to have a special focus and teaching on any number of nonreligious topics violates the First Amendment’s Free Exercise Clause.

“A government that excludes religious institutions from generally available public programs—simply because they are religious—is engaging in unconstitutional discrimination,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The First Amendment was designed to protect both freedom of religion and freedom from government interference in religious practice.”

Oklahoma, like many other states, chose to allow charter schools that are privately run under a contract with the government but are free and open to the public and funded by the government. In a 3-2 vote by Oklahoma’s Charter School Board, St. Isidore of Seville Catholic Virtual School, a proposed online charter school created by the Archdiocese of Oklahoma City and the Diocese of Tulsa, had its application approved, allowing for a tuition-free school option that would incorporate Catholic teachings throughout its curriculum. However, Oklahoma Attorney General Gentner Drummond sued to rescind the contract. The Oklahoma Supreme Court ruled 6-2 against the proposed charter school, reasoning that charter schools are effectively government entities and therefore cannot promote religious doctrine without violating the Establishment Clause. The U.S. Supreme Court’s evenly split decision allows that ruling to remain in effect, but sets no national precedent.

In its amicus brief, The Rutherford Institute argued that religious charter schools, which are privately run, should not be considered government actors given that the state exercises no significant control over their operations. The Institute further urged the Court to find a provision of Oklahoma’s state constitution—a “Blaine Amendment”—as incompatible with the U.S. Constitution’s First Amendment right to the free exercise of religion when that provision is used to exclude religious institutions from public benefits that are otherwise generally available. Blaine Amendment provisions exist in 37 states and prohibit public funds being used to aid religious institutions. These provisions have also been used to eradicate any general mention of God or reference to religion by government officials.

Attorneys Jason P. Gosselin and John M. Bloor of Faegre Drinker Biddle & Reath LLP advanced the arguments in the amicus brief on behalf of The Rutherford Institute.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.