CNN
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The Supreme Court split evenly Thursday in a high-profile challenge over the nation’s first religious charter school, leaving in place a ruling from Oklahoma’s top court that found the proposed Catholic school unconstitutional.
The 4-4 split was made possible because conservative Justice Amy Coney Barrett recused herself from the case. Though she did not explain her decision, the former University of Notre Dame law professor had multiple ties to the attorneys representing the St. Isidore of Seville Catholic Virtual School.
Religious groups had won a series of opinions from the conservative majority in recent years allowing public funding to be spent on religious education and programming. Critics said a win for the school in this case could have vastly expanded the availability of taxpayer funds for religious schools or, alternatively, pushed states to back away or rethink charter school programs.
Consistent with its usual practice, the high court issued a brief, unsigned order noting only that it had divided equally. The Supreme Court last split 4-4 in 2022 in a far more technical case dealing with when locomotives must be inspected under federal law.
Evenly split decisions do not set precedent, so the religious groups involved in the case will be able to bring another case.
In an unusual political twist, Oklahoma’s Republican attorney general, Gentner Drummond, sued to block the school’s creation. In a social media post on Thursday, Drummond said he was “proud to have fought against this potential cancer in our state.” Drummond said he would continue “protecting our Christian values and defending religious liberty.”
Jim Campbell, chief legal counsel at Alliance Defending Freedom, called the outcome “disappointing for educational freedom.”
The religious law group had argued before the Supreme Court on behalf of the board that approved the charter school.
“The US Supreme Court has been clear that when the government creates programs and invites groups to participate, it can’t single out religious groups for exclusion, and we will continue our work to protect this vital freedom for parents and students,” Campbell said.
The court did not indicate how the justices voted – and oral arguments are not always an accurate predictor. But when the court heard the case in late April, Chief Justice John Roberts, in particular, asked sharp questions of both sides and appeared to be leaving his options on a decision open.
Three of the court’s conservatives appeared to support the creation of the school, while the court’s three liberal justices seemed opposed to it.
Charter schools – privately run but publicly funded – serve 3.8 million students in the US, offering an alternative to traditional public schools that are intended to be more innovative and less bound by state regulations. The concept took off in the 1990s and, by the 2023 school year, there were some 8,000 charter schools operating nationwide.
The law in Oklahoma, as in most states, deems the schools to be public.
Oklahoma Gov. Kevin Stitt and the state’s former attorney general, John O’Connor, both Republicans, supported the school’s creation. But when Drummond took office in 2023, he withdrew support for the school and ultimately sued to stop its approval.
The state’s top court sided with Drummond last year, holding that the school violated the First Amendment’s establishment clause.
Yet the US Supreme Court has decided a series of appeals in recent years through a different lens: The government doesn’t have to open public programs to private entities, the majority has ruled. But if it chooses to do so, it cannot exclude religious entities from taking part.
Most recently, the court in 2022 barred Maine from excluding religious schools from a public tuition assistance program that allows parents to use vouchers to send their children to public or private schools. In a 6-3 decision, the court held that excluding religious schools from the tuition program violated the First Amendment’s free exercise clause.
“The fact that the Court split 4-4 in this case, with Justice Barrett recused, is not especially surprising,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center. “The surprise is that the Court had agreed to take this case up, with Justice Barrett recused, in the first place. That had led some folks to wonder if Chief Justice Roberts might be willing to join the other four Republican appointees in favor of public funding for religious charter schools. Today’s affirmance without an opinion suggests that he isn’t, at least for now.”
Gabe Roth, who leads a Supreme Court watchdog group called Fix the Court, praised Barrett’s decision to recuse.
“Today’s deadlock shows the justices have it within them to exercise ethical leadership, even if it leads to results some might deem less than supreme,” Roth said.
“From an institutional and an ethical perspective, it is far better that Justice Barrett sat out this case due to her conflict than exercise a purported ‘duty to sit,’ which would’ve caused an air of bias to hang over it,” he said.
This story has been updated with additional details.
