The Supreme Court is poised to hand down another major ruling on the separation between church and state. Last Friday, the justices agreed to hear Oklahoma Statewide Charter School Board v. Drummond. The case centers around the planned creation of what would be the nation’s first religious public school, which would amount to a sea change in American constitutional law if it is allowed to stand.
Most Supreme Court cases in this vein follow a familiar pattern. The Roberts court is friendlier to religious liberty cases than previous generations of justices. In recent years, it has been particularly hostile to states that deny public funds and resources to them. But this case is about state versus state as much as it is about church versus state. Those dynamics, as well as a few other oddities unique to this dispute, may give the justices some pause before handing down a sweeping ruling.
At issue is the creation of St. Isidore of Seville Catholic Virtual School in Oklahoma. The state’s Catholic bishops said that they hope to set up an online charter school to serve parishioners in the state’s more rural areas where operating brick-and-mortar Catholic schools is financially unfeasible. The school’s namesake is an appropriate one: Saint Isidore, a seventh-century bishop in Visigothic Spain who worked to collect and preserve classical learning, is the patron saint of the internet.
To that end, the school’s organizers applied to the Oklahoma Statewide Virtual Charter School Board to found a charter school. (That board has since been merged with another one to cover virtual and physical charter schools, but the change is not relevant to the litigation.) Successful applicants then enter into a “contract for sponsorship” with the board that outlines the terms of the school’s creation and operation. The board retains extensive oversight powers and can close the school for violating the contract’s terms or for other forms of misconduct or misgovernance.
Is a charter school a private entity that is funded by the government, as the school and its supporters claim, or is it a public school that is run by private officials? Oklahoma law strongly suggests the latter option. State law defines a charter school as a “public school established by contract.” It treats charter schools—the virtual aspect is not constitutionally relevant here—as part of the state’s public school system for transferring students, busing, anti-discrimination laws, and much more. They cannot charge tuition or fees, and they must accept all students.
Two provisions in state law are particularly relevant in this case. One is that state charter schools cannot be “affiliated with a nonpublic sectarian school or religious institution.” The other is that a state charter school must be “nonsectarian in its programs, admission policies, employment practices, and all other operations.” Oklahoma’s state constitution also defines its public schools as “open to all the children of the state and free from sectarian control.”
This language would appear to present some potent hurdles to the creation of a charter school that hopes to be, as one local Catholic official told The Tulsa World in February 2023, “a fully Catholic school—Catholic in every way, Catholic in teaching, Catholic in employment,” and so on. But it did not stop the board from approving the contract two years ago, sparking a major legal standoff over what would be the nation’s first religious public school.
The case’s origins are deeply rooted in Oklahoma politics. In May 2021, Oklahoma Attorney General Michael Hunter resigned from his office after filing for divorce from his wife, claiming that “certain personal matters that are becoming public will become a distraction for this office.” Oklahoma Governor Kevin Stitt appointed John O’Connor, a longtime friend and mentor, to serve as attorney general for the remainder of Hunter’s term. O’Connor then ran for a full term in 2022.
Opposing O’Connor’s candidacy in the Republican primary was Gentner Drummond, who had previously run against Hunter in 2018. Drummond is a lawyer, a former fighter pilot, and a member of one of the state’s most influential ranching families, which owns almost 10 percent of Osage County. (Ree Drummond, the “Pioneer Woman,” is one of his cousins.) A central issue in the campaign was the state’s response to McGirt v. Oklahoma, the landmark 2020 Supreme Court ruling that recognized tribal sovereignty over roughly half of the state.
O’Connor, following Stitt’s lead, had argued for a more combative approach with the tribal governments in the wake of the high court’s ruling. They also hoped to persuade the Supreme Court to soon reverse McGirt. (Those efforts were only partially successful.) Drummond argued that the state could avoid disruption by working collaboratively with the tribal governments. He ultimately prevailed in the GOP primary, then handily won the statewide race after Democrats declined to run a candidate.
After O’Connor’s defeat in the primary, he continued to serve as state attorney general until his replacement was elected. In December 2022—roughly one month after Drummond won the statewide race and roughly one month before he would be sworn in—O’Connor issued a formal legal opinion on whether the state could operate a public religious school through its charter program.
His move came in response to a formal request from Rebecca Wilkinson, the executive director of the state’s virtual charter school board. She had asked O’Connor whether those two statutory requirements—the nonreligious one and the nonsectarian one—still applied, after a series of Supreme Court rulings on taxpayer funds and religious institutions. (More on those rulings later.) In a 15-page opinion, O’Connor concluded that the two requirements were unenforceable.
“We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional,” he wrote. O’Connor concluded that the justices would almost certainly overturn the nonsectarian requirement, though he noted that allowing a religiously affiliated public charter school was a “more complex question.” He nonetheless thought the Supreme Court would reject it if given the opportunity.
Drummond withdrew O’Connor’s opinion the month after taking office. In a February 2023 letter to Wilkinson, Drummond wrote that his predecessor had acted inappropriately by responding to a request that wasn’t approved by a vote of the board. He also sharply disagreed with O’Connor on the legal analysis. Since the Supreme Court had not yet ruled on the “unsettled issue” of whether charter schools are part of the state, Drummond said he was “not currently comfortable advising your board members to violate the Oklahoma Constitution’s clear directive.”
He also took issue with O’Connor’s opinion—and the St. Isidore proposal itself—on policy grounds. Drummond described himself as a “strong supporter of religious liberty” but argued the proposal did nothing to advance that “worthy” cause. “The opinion, as issued by my predecessor, misuses the concept of religious liberty by employing it as a means to justify state-funded religion,” he wrote. “If allowed to remain in force, I fear the opinion will be used as a basis for taxpayer-funded religious schools.” He also expressed doubt that “most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith.”
Drummond’s advice went unheeded. The board voted to approve the school’s creation the following June. In October 2023, the attorney general took the extraordinary step of suing the board to reverse its decision. “There is no religious freedom in compelling Oklahomans to fund religions that may violate their own deeply held beliefs,” Drummond said in a statement at the time. “The Framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution clearly understood how best to protect religious freedom: by preventing the state from sponsoring any religion at all.”
Last June, the Oklahoma Supreme Court sided with Drummond. In addition to the statutory language on charter schools, the majority also cited the state constitution itself, which says that “no public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion.” It also specifically forbids spending public funds on “any priest, preacher, minister, or other religious teacher,” as well as on any “sectarian institution.”
“Enforcing the St. Isidore Contract would create a slippery slope and what the [state constitutional] framers’ warned against—the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention,” Justice James Winchester wrote for the majority. The court held that the school, as a public charter school, was a “governmental entity and a state actor,” and that constitutional bans on religious sectarianism therefore apply.
The board and the school both asked the U.S. Supreme Court to step in. In recent years, the court’s conservative majority has taken a sledgehammer to long-standing bans on disbursing public funds to religious institutions. The court held in the 2017 case Trinity Lutheran Church v. Comer that Missouri violated the free exercise clause by excluding a church daycare from a program that resurfaced playgrounds with recycled tires. In 2020, the justices found a free-exercise violation in Espinoza v. Montana Department of Revenue when the state refused to allow private school scholarships to go to religious schools because of a state constitutional ban on public funds for religious institutions. And in the 2022 case Carson v. Makin, the court overturned a Maine law that restricted the use of tuition-assistance funds for private schools to “nonsectarian” ones.
At first glance, those precedents would seem to favor the board and the school. As Drummond noted in his letter to Wilkinson, however, all three of those cases focused only on private schools, which generally operate independently from state education systems. Charter schools, which are typically much more closely organized and supervised by state governments, raise establishment clause concerns that do not necessarily apply to private schools or entities.
O’Connor was also not exactly wrong to think the court might still overturn the Oklahoma restrictions if given the chance. In all three cases, the justices described the various nonsectarian and nonreligious requirements at issue as a form of religious discrimination—not between different sects or denominations but between sectarian and nonsectarian institutions. That reasoning led the court to apply strict scrutiny, its most demanding judicial test, and strike the restrictions down. It also led the dissenting justices to accuse the majority of using the free exercise clause to swallow the establishment clause.
To that end, the board and the school have framed this issue as yet another free exercise clause battle. “Such open hostility toward religion—like the underlying state laws it is meant to implement—is ‘odious to our Constitution’ and cannot be allowed to stand,” the board argued in its petition. Drummond, on the other hand, has warned against allowing the government to effectively set up religious schools and define religious orthodoxy. “The state’s official approval of one particular ‘Catholic curriculum’ presents an obvious Establishment Clause issue in that the state has elevated the doctrinal beliefs of one rite of Catholicism over all others,” he noted in his own brief.
The court could also hand a win to the board and the school by holding that the state’s charter schools are not “state actors,” a legal term used to describe an entity that operates under government control. College football’s recent national championship game is illustrative: Ohio State, a public land-grant university, is a state actor to which the First Amendment and other constitutional protections apply. Notre Dame, a private Catholic university, has far greater leeway when it comes to regulating its students’ conduct, and generally cannot be sued for alleged free speech and religious freedom violations. If the high court holds that Oklahoma’s charter schools are not state actors, then the board and the school would be on a much stronger legal footing.
There are a few other things about the case that are unusual. One is the procedural pathway that brought it to the justices. Most cases heard by the Supreme Court are first brought before a trial court, then reviewed by an appellate court, and then considered by the justices. This case was heard directly before the state Supreme Court on a motion by the Oklahoma attorney general. While the school’s organizers later intervened in the lawsuit, the actual crux of the dispute is between the attorney general and the board. As I noted earlier, this case is just as much about state versus state as it is about church versus state.
Second, it is unclear if the Supreme Court has jurisdiction over this case at all. The state Supreme Court’s ruling focused on state law and the state constitution, over which it has the final say. “In the proceedings below, SISVC School and the Board did not affirmatively seek a declaration that the Oklahoma Constitution violates the U.S. Constitution,” the attorney general’s office noted. “Thus, these arguments were not presented to the Oklahoma Supreme Court and should not be considered by this Court in the first instance.” While the state Supreme Court mentioned the First Amendment in its decision, the justices may ultimately ask the state Supreme Court to consider that aspect more squarely instead of skipping straight to the merits of the case.
Third, the case is hard to separate from the political turf wars between Oklahoma’s Republican elected officials. Drummond’s lawsuit put him at odds with most of the state leadership. Stitt, the governor, has clashed with Drummond on multiple issues, including this one. Just this month he prevailed against Drummond in the state Supreme Court in a dispute over who can litigate over various tribal gaming contracts. In a friend of the court brief that sided with the board, Stitt said he felt “compelled to speak on behalf of Oklahomans” because Drummond had “deprived them of a true advocate by launching this attack against their religious liberty and educational freedom.” He even accused Drummond of “open hostility against religion” and anti-Catholic “discrimination.”
Ryan Walters, Oklahoma’s controversial superintendent of public schools, also backed the board. He has captured national headlines in recent years for trying to suffuse the state’s public schools with Christian religious messages and right-wing policies. Last October, for example, Walters sought to purchase 55,000 Bibles for use in public schools—and set the requirements for the supply contract so that only a Trump-endorsed Bible would qualify. In his brief, he said he was “concerned about the confusion” from the state Supreme Court ruling “in an area where clarity is essential to safeguarding free-exercise rights.”
Lurking in the background of the case is Oklahoma’s gubernatorial election next year. Stitt will be ineligible to run for a third term, leaving the race wide open for his successor. Drummond announced this month that he would run for the position. Walters has not officially declared his candidacy but has suggested that he will pursue it: He complained last August, for example, during a clash with state lawmakers that the Oklahoma House speaker “wants to impeach me for political advantage in the 2026 governor’s race.”
Finally, the justices will be considering the case with one fewer member. In its order on hearing the case last Friday, the court said that Justice Amy Coney Barrett had recused herself from it without further explanation. Whatever the cause, it leaves the court with five conservative justices and three liberal ones. Assuming a traditional ideological split, the liberals would only have to persuade one of their conservative colleagues to side with them instead of two. A 4–4 deadlock would leave the state Supreme Court’s decision intact. Whether any of the conservative justices are open to that outcome will become clearer when the court holds oral arguments on the case later this spring.
