Understanding the St. Isidore Decision

The recent Supreme Court decision in St. Isidore Catholic School v. Drummond decided that Oklahoma had the right to deny a school charter to religious organizations. It was a squeaker of a decision: Justice Amy Coney Barrett recused herself, and the remaining justices were split 4-4. When there is a 4-4 tie in a Supreme Court decision, the legal effect is that the law is not changed, and the lower court’s decision stands. In this case, that meant that the Oklahoma Supreme Court’s decision stood. The Oklahoma Supreme Court had sided with the Oklahoma Attorney General’s office denying the charter. This decision, presumably, was a victory for someone . . . but for whom? 

It is tempting to see this as a victory for liberal Enlightenment values and the Establishment Clause of the US Constitution. And in a very very narrow sense, it is. Because there was no majority, the Oklahoma state government was not forced to give a charter to a religious organization to deliver public education on the state’s behalf. For now, at least, and on a legal technicality, the State of Oklahoma’s decision is allowed to stand—in Oklahoma.

However, there are many reasons not to heave a sigh of relief. First, the Constitutional question remains undecided by the Supreme Court. That question is as follows: When a state grants a public charter to provide education, have they enlisted that group to be a state actor—acting, in other words, on behalf of the state? If so, then the Establishment Clause prevents a religious organization from receiving the charter. That was the Oklahoma Attorney General’s argument, which the Oklahoma Supreme Court upheld.

But there is a different argument, the one brought by St. Isidore. That argument is: no, this isn't about making a church into a state actor. This is about giving a religious organization a public benefit. If the charter is a public benefit, then the state can't discriminate against religious organizations when it gives out that public benefit. This issue was already decided by the Supreme Court in 2017, in Trinity Lutheran Church of Columbia v. Comer. In that case, the Court decided that the state of Missouri committed unlawful religious discrimination when it barred a church-run preschool from receiving the public benefit of participation in a state’s playground resurfacing program. St. Isidore wanted the Court to affirm that, in the same way that the government can't discriminate against religious organizations when you hand our playground funds, neither can the government discriminate against religious organizations when it's handing out charters to run a school. 

A 4-4 split does not settle that question, and other cases are surely being teed up by proponents of state-sponsored religious education who think that they will win once Justice Coney Barrett is included in the vote. It's also worth noting who else is celebrating the outcome of this case. Some of the people celebrating the outcome of the St. Isidore case are advocates for school vouchers and charter schools. Opponents of vouchers and charter schools have long warned that such programs were a slippery slope—that if you allow public charters and vouchers, eventually states will be forced to allow religious groups to run public schools. Had this case been decided in St. Isidore's favor, it would have allowed opponents of school vouchers and charters to say, “See? We told you so.” States who did not want to have religious public schools would have had to scrap their charter programs altogether. So, there is a real sense in which the loss for St. Isidore is a victory for people who would like to redirect government resources from public school systems to charter school providers.

Far more worryingly, the public messaging coming out of the Oklahoma Attorney General's office has been appallingly anti-Muslim. Attorney General Drummond, who has announced his intention to run for governor of Oklahoma, has used his government Facebook page to fulminate about the possibility that a victory for St. Isidore would mean that Oklahoma would have to give charters to radical Islamic schools. No one has proposed such a school, yet Attorney General Drummond called the prospect a “cancer.” Those who are relieved at the St. Isidore decision should still be alarmed and disgusted by this despicable rhetoric.

In sum, this is not something to sleep on, and not every part of this decision is a win. For those of us who favor a robust interpretation of the Establishment Clause, our sigh of relief should be very brief.

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