Last week, the Supreme Court heard oral arguments in a potential landmark case on the constitutionality of participation by religious institutions in a state system of charter schools.

The case, which consolidated two lawsuits named Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville School v. Drummond, arrived at the Supreme Court after a sequence of events familiar to debates around the failings of many of the nation’s public schools and parents’ search for solid alternatives. The first charter schools in the United States opened in Minnesota more than three decades ago, and the schools have grown in popularity to the point where millions of children are now enrolled.

The schools are funded by tax dollars and their public character — tuition free and subject to state and federal laws in such areas as non-discrimination law and curriculum standards — is accepted by all the disputants in the litigation. St. Isidore is significant as the first religious school to seek approval to participate in a charter school program. Oklahoma is among a number of states that responded to declining test scores and graduation rates by creating the charters, which pride themselves on innovation and high academic standards not achieved in many traditional public schools. Oklahoma’s charter school law was enacted in 1999. Two decades have therefore passed before a religious school applied for charter status, and the state-created board in Oklahoma approved St. Isidore’s application in 2023.

The approval was promptly challenged by the newly elected Attorney General of Oklahoma, Gentner Drummond (R), who was supported by the American Civil Liberties Union and other advocates who deem St. Isidore a threat to the separation of church and state. In June 2024, the Oklahoma Supreme Court overturned the approval of St. Isidore, citing provisions of the Oklahoma State Constitution. The state’s charter school board and St. Isidore then took the matter into federal court, and the U.S. Supreme Court agreed in January 2025 to take up the case, leading to oral argument on April 30. From the beginning, the case has involved disagreement among participants often on the same side of issues. Governor Kevin Stitt, a Republican, has sided with the Catholic charter school, while Drummond, likewise a Republican, has opposed St. Isidore’s inclusion.

Making the situation even more intricate, one of the eight justices, Amy Coney Barrett, recused herself from the case due, analysts say, to her friendship with Nicole Garnett, a law professor at Notre Dame, who was close to Barrett when both were Supreme Court clerks in the 1998 term and who participated in the suit at an earlier stage. The recusal likely means that the final Supreme Court decision will be 5-3 or 4-4. If it is the latter, the Oklahoma Supreme Court ruling will stand, and St. Isidore’s application will be disapproved, albeit the ruling will have less weight should future proceedings occur on the same issue.

The oral argument brought forward an array of legal firepower. The Oklahoma Statewide Charter School Board was represented by Alliance Defending Freedom (ADF), a pro bono nonprofit organization dedicated to the defense of religious freedom, school choice, life, and family. The Trump administration was represented by its new Solicitor General, the distinguished D. John Sauer, making his first appearance before the High Court in his new role. On the side of Oklahoma, representing the state AG, was Greg Garre, former Solicitor General under President George W. Bush. Reflecting the close nature of the case, the oral argument lasted more than two hours and 11 minutes and revolved around questions of the degree of state control or management of the charter schools and whether the inclusion of religious schools violates the Establishment Clause.

ADF Counsel Jim Campbell summed up the argument, “Oklahoma parents and children are better off with more educational choices, not fewer. The Constitution protects St. Isidore’s freedom to participate in Oklahoma’s charter-school program, and it supports the board’s decision to provide more high-quality, no-cost educational options for Oklahoma families. The U.S. 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.”

Opposing counsel and several Supreme Court justices, including Elena Kagan, strove to distinguish the charter school process from other instances where religious entities have been found free to participate in public programs, like tuition tax credits. Charter schools are “state-run institutions,” she said, because of such characteristics as being no-cost, open by law to all, and having to meet proficiency standards.

The outcome in the case could depend on whether the Supreme Court agrees with the view that charter schools involve excessive entanglement of the government in religious affairs — or whether the exclusion of religious schools itself entangles the government in a form of impermissible discrimination. For its part, St. Isidore insists that it will admit any student regardless of his or her religious affiliation or non-affiliation, and no student will be required to attend religious services sponsored by the school. Free or not to the student and the family, the child’s presence in the school with state support on an equal basis is made by parental decision, as it would be with a tax credit or student scholarship, and not by direction of the state.

It’s intriguing that the questions presented in this litigation are reaching the Supreme Court more than three decades after the founding of the charter school movement. The National Center for Education Statistics reports that there were some 7,800 charter schools in the United States as of the 2021-22 school year. That compares with some 91,400 traditional public schools. Charter schools, while growing in popularity, represent only 8% of the publicly authorized schools in the nation. Between 2010-11 and 2021-22, the total number of public schools changed by less than half a percentage point. From this perspective, charters are more like an added option than a revolution.

Their rationale remains compelling, even if other options exist to expand parental choice in education. The failure of many public schools to meet educational standards, despite massive infusions of funding, is a national scandal. The National Assessment Governing Board (NAGP) released data for 2024 that showed continued weakness in student achievement with a widening gap between the nation’s best-performing and lowest-performing students.

The NAGB found that, on the whole, America’s school population has not recovered from the sharp drops in achievement that occurred during the COVID pandemic. The NAGB writes in bold, “National scores are below pre-pandemic levels (2019) in ALL tested grades and subjects.” The report adds that reading scores, which like other subjects are tested at the 4th and 8th grade level, are down in both groups. Moreover, a full one-third of students in the 8th grade are not reading at the NAEP Basic Level, a higher percentage than ever before. Math scores at the 8th grade level remain depressed after the record decline of 8 percentage points in 2022.

With this much amiss at the level of elementary and secondary education, concern that a tiny fraction of charter school students will be exposed voluntarily to a religious theme seems almost absurd. The very idea of charter schools is to create another option for parents whose children are trapped in severely underperforming schools. The state has every interest in ensuring that charter schools are performing as well or better than their traditional counterparts and can do so without establishing religion or entangling itself in the spiritual dimension of students’ education.

In endeavor after endeavor, from foster care and adoption, to services for migrants, and education for disabled students, the government has generally treated religious nonprofits as equally eligible program participants. A charter school may fail on a variety of grounds, and some have, in which case the state can and should shut them down. But in these challenging times, parents need more choices, not fewer, and courts should not stymie them for anything but the most objective of reasons.

At the same time, states should remain free to pursue the long list of other options for educational improvement, including macro policies like classical education and merit pay for teachers in public schools, as well as reforms like limits on screen usage in classrooms, improvement of library content, phonics education, and expansion of vocational education. As policy options grow in number, the expansion of assessments and communication of their findings will be critical. Many parents do not suspect, or have a limited understanding of, how far off their children’s schools’ performance is from what is achievable. Our children are by far our most precious resource, and our nation’s schools must reflect that.

The Supreme Court should issue a ruling by the end of June, and many eyes will be on Chief Justice Roberts who asked an array of questions at oral argument that did not reveal his inclinations. More information on the lawsuit and ADF’s role can be found here.