Are Religious Charter Schools Constitutional? What the Supreme Court Says

Key takeaways:

• The Supreme Court ruled that Oklahoma cannot fund religious public charter schools.
• The court was deadlocked 4-4, with Justice Amy Coney Barrett abstaining.
• The ruling — which was issued without explanation — does not apply to schools outside Oklahoma, but a future case regarding taxpayer funding of religious charter schools could set a precedent that applies nationwide.

On April 30, 2025, the U.S. Supreme Court heard oral arguments in Oklahoma Statewide Charter School Board v. Drummond (consolidated with St. Isidore of Seville Catholic Virtual School v. Drummond). The outcome was expected to open the door for public funding of religious schools as part of a state’s charter school program, particularly in states with few conditions on how charter schools operate. But in a surprise result, the court announced just three weeks later on May 22, 2025, that the justices were split 4-4. The split decision means the decision of the Oklahoma Supreme Court, which ruled that the state cannot fund religious public charter schools, will remain in place. Eight justices decided the outcome because Justice Amy Coney Barrett had recused herself from the case.

Generally, a charter school is a school created and operated by a private company that becomes part of the public school system, though with more flexibility. It looks like a public school in the sense that it is free to all students in the district and must meet most educational standards of public schools in that state or district. It also receives federal funding.

Charter schools generally have more room to innovate than traditional public schools. While some states subject charter schools to most of the same laws and regulations as regular public schools, in other states, including Oklahoma, charter schools are freed from most of the laws and regulations applied to regular public schools.

The central question in this case was whether Oklahoma violates the First Amendment if it excludes privately run religious schools from its charter school program.

During oral arguments, several Supreme Court justices appeared ready to rule that in the process of applying to become charter schools, religious schools must be treated in the same way as secular school applicants. “All the religious school is saying is don’t exclude us on account of our religion,” Justice Brett Kavanaugh said during arguments. In this view, excluding religious charter schools would be religious discrimination prohibited by the First Amendment’s free exercise clause.

Other justices raised First Amendment establishment clause concerns such as taxpayer funding of religious instruction and the potential for entanglement of church and state. “What you're saying is the free exercise clause trumps the essence of the establishment clause,” Justice Sonia Sotomayor told the attorney for the state’s charter school board. “The essence of the establishment clause was, 'We're not going to pay religious leaders to teach their religion.’”

Now what happens?

The Oklahoma Supreme Court’s decision remains in place, meaning the Oklahoma Statewide Charter School Board is barred from including religious schools in publicly funded charter school programs. The split decision of the U.S. Supreme Court means the larger First Amendment question will not be answered outside Oklahoma until another case presenting this issue is accepted and decided by the court. For the time being, taxpayer funding of religious charter schools is not required under the First Amendment.

What does it mean for me?

In Oklahoma, publicly funded charter school programs cannot include religious schools. This case has no implications outside Oklahoma, although a future case regarding taxpayer funding of religious charter schools could set a precedent that applies nationwide.

How did this case start?

In 2023, the Oklahoma Statewide Charter School Board approved the application of St. Isidore of Seville Catholic Virtual School to be a virtual charter school. Oklahoma Attorney General Gentner Drummond challenged the board’s decision, arguing that funding a religious school violated the federal and state constitutions. The Oklahoma Supreme Court agreed with Drummond, basing its argument on the establishment clause. It said that using public funds to advance religious teachings was a clear violation of church-state separation under both the federal and state constitutions.

How did the case get to the Supreme Court?

After losing in the lower courts, the charter school board and the school appealed to the U.S. Supreme Court. The court agreed to hear the appeal and consolidated the two cases.

What did the charter school board and St. Isidore argue?

The Oklahoma Statewide Charter School Board and St. Isidore Catholic Virtual School argued that excluding religious groups from publicly available education benefits is religious discrimination in violation of the free exercise of religion. They pointed to recent Supreme Court decisions in which the court ruled that religious organizations cannot be denied access to generally available public funding simply because of their religious identity. The charter board and school contended that religious schools should be able to participate in publicly available programs without discrimination, and religious-school students should be able to participate in these programs on the same basis as students who attend nonreligious schools.

What did the Oklahoma attorney general say?

Attorney General Drummond argued that Oklahoma charter schools are public schools authorized by the state and funded by tax dollars. Unlike private schools, which are independently funded, public charter schools may not provide religious instruction, as St. Isidore does. Under both the First Amendment’s establishment clause and the prohibition on state funding of religion in Oklahoma’s constitution, the attorney general asserted that St. Isidore cannot receive public funds while maintaining a religious mission.