Last week, the U.S. Supreme Court split 4–4 on whether refusing to apply for charter schools from religious schools violates the constitutional ban on establishment or endorsing religion. The decision upheld the Oklahoma Supreme Court’s decision to approve “evangelism” schools where certain faiths violate state laws and Oklahoma and the federal constitutions. It did so without its own opinion, as when the long-standing customs of the court were equally divided. Judge Amy Connie Barrett did not attend.
Like most other states, Oklahoma law gives state board officials to “charter” schools. The Charter submits to a variety of regulatory requirements, including designating a “public school” to receive public funds, giving it the right to receive public funds, and being nondenominational. However, in 2023, the Oklahoma Charter Board of Education was presented with an application by St. Issidor, a virtual charter school in Seville. The board of directors awarded the charter anyway.
In June 2024, the Oklahoma Supreme Court put aside the board’s decision and held that opening the school was violated and simultaneously violated the laws of the Oklahoma Charter School, the Oklahoma Constitution and the federal establishment provisions. Then, January 2025 – Despite my oppositional predictions, the US Supreme Court granted the certificate to consider whether refusal to a charter to school by religious character violates the establishment clause.
The affirmation of the state high courts by the equally divided courts last week is formally lacking precedent. Nevertheless, that tells us, as much justice was prepared to hold that Oklahoma was obliged to charter St. Isidor and was ready to hold the opposition. Therefore, court affirmations, practically speaking, announce a tolerant policy. The state can, but is not necessary, exclude religious schools from the charter program. This opens a slightly wider door than states outside of Oklahoma advance religious charters.
However, this expansion does not suggest that the state should not be expected to stomp through this new ajal doorway. In fact, Congress often proves that, as far as the law allows, they are often reluctant to fully open the system of public schools to religion. In particular, after the 2002 court decision Zelmanv. Simmons-Harris We allow religious schools to be included in our voucher program, but neither the red or blue legislatures quickly took advantage of their concerns about tinkering with the public school system that most components have embraced.
But at this moment, Congress is not the only decision to push religious inclusion into the charter program. The leniency of court decisions allows market participants to target exclusions from the Charter Act, with or without cooperation from the state charter school board. Religious entrepreneurs can submit charter applications. A denied applicant can sue that denial, and its enemy (as happened in Oklahoma) can sue that acceptance. Given the equally divided Supreme Court last week, the state courts where many of these cases land may understand that this issue is largely up to them.
Religious entrepreneurs – next generation schools like St. Isidor flock to file such lawsuits? That’s not clear. For one thing, accelerated growth in vouchers, with the support of the Trump administration, means there are ways to secure public funding so far. None Being a charter school. And the US Supreme Court has already said that the voucher program cannot demand non-enforcement. Being a voucher recipient provides religious schools with a lower regulatory burden than those imposed on the charter, particularly curriculum flexibility and the opportunity to embrace paid clients. Religious schools may also have the political advantage of not hostile to charter school boards or education sectors. This may feel an obligation to enforce the Charter Act, as written, unless the court instructs otherwise.
Warrants from large proponents of educational choices may also see reasons to step lightly on religious charters. In particular, they may be concerned that some states will abolish the Charter completely, rather than house sectarian schools in their programs – an option explicitly preserved by the Supreme Court. Religious charters can lose both allies and ideological traction if they irritate educational choices along a secular dimension, especially without the need to.
One final question is whether the Supreme Court simply delayed the resolution of this issue due to a singular rehearsal. To answer this, you need to know why Barrett rejected herself from the Oklahoma incident and how she controlled if she didn’t. A well-placed observer believes that Barrett’s rejection is unique to the Oklahoma situation and that it is likely that Barrett is on the side of the religious charter if he hears such an incident. Barrett’s refusal itself suggests that he may have been surprised that at least one of his conservative colleagues voted to support the Oklahoma Supreme Court. Of course, no one knows about such speculation. However, their validity may motivate any number of parties to advance a new case at court instructions.
It is hard to imagine that if such a case finally arrives in the Supreme Court or is litigated to be completed in a state or federal appeals court, it is difficult to imagine that the core argument will change dramatically. Judge Clarence Thomas opened oral debate in the U.S. Supreme Court on basic issues. Because St. Isidor asks to be a public school or a charter school, and the council defines charter as “public.” Or are they participating in public programs that include both public support and public regulation, regardless of how Congress describes it? If that is the former, the state can rule out religious charters. In the latter case, you must allow it.
I argued on these pages a year ago that the latter argument was better. But less justice than I thought I agreed. It remains unclear whether Barrett will ultimately be squeezed, whether other courts will resolve the issue state by state, or whether the issue will recede from the litigation agenda. Anyway, I think there’s no doubt about a bigger trend. Every year, religious school students will be more and more supported by public funds.
Aaron Saiger He is a professor at Fordham University Law School and director of the Urban Law Centre at Fordham Law School.
Suggested Quote: Aaron Saiger, After the U.S. Supreme Court ruling, it is back to the state lab for a religious charter schoolsᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (May 29, 2025), https://statecourtreport.org/our-work/analysis-opinion/after-us-supreme-court-ruling-ulsing-tates-laboratories-religion