Religious public education is an uncommon phrase in the United States given current jurisprudence relating to the 1st Amendment Establishment and Free Exercise Clauses. However, this phrase has recently garnered serious attention after the Archdioceses of Oklahoma City backed a plan to create the St. Isidore Catholic Virtual School, a public charter school that is, according to the executive director of the Catholic Conference of Oklahoma Brett Farley, “Catholic in every way.” Prior to this, charter schools faced public controversy for, among other reasons, how much funding they deprived traditional public schools of. Now, charter schools, and public education more broadly, face a unique test to see just how far religion can be embedded in their institutions.

This first of its kind religious public charter school was approved and granted a contract by Oklahoma Statewide Charter School Board in October 2023 but was subsequently struck down by the Oklahoma State Supreme Court. The court, siding with the Oklahoma Attorney General Gentner Drummond, held that St. Isidore’s existence violated both state law and Constitutional provisions against the establishment of religion. In an attempt to keep this novel school alive, the state board petitioned the U.S. Supreme Court, who granted cert in this case. Oklahoma Statewide Charter School Board v. Drummond (2025) will have the Supreme Court decide two consequential questions that will determine the future of religion and public education in America. First, are the actions of privately owned and operated schools considered state actions because these institutions have state contracts to provide public education to students? Second, is the state required by the Establishment Clause to prohibit this charter school from forming, or does the Free Exercise Clause allow the school to exist?

To answer these questions, it is important to consider the Oklahoma statutes that govern the contracts and operations of charter schools. These schools are simply not private schools that receive state funding; they are alternative public schools that receive the same source of funding as their traditional public counterparts. This idea is enumerated in the aforementioned statutes, which state charter schools are “equally free and open to all students as traditional public schools” and “receive the State Aid allocation, federal funds…, and any other state-appropriated revenue generated by its students for the applicable year”(Oklahoma Charter Schools Act, c. 320, § 5, (1999)).

With the contractual relationship between charter schools and Oklahoma established, only certain actions by the owners and operators of the school constitute state actions. While the Supreme Court has never decided the issue of “state action” in the context of public charter school contracts, it has decided a similar matter in the context of contracts with private schools in Rendell-Baker v. Kohn (1982). Rendell-Baker held that even though the private school in question received state funding, its employment matters were not attributable to a state action since that function of the school was always in control of the private operators of the school.

Although the Court did not explicitly draw a line for what constitutes state action in private school contracts, their reasoning suggests that functions of the school that are shared between the state and the private operators can be attributable to state action. For instance, the school in Rendell-Baker specifically was paid by school districts to provide education for high school students who suffer from “drug, alcohol, or behavioral problems;” this shared educational goal is attributable to the state through the logic of Rendell-Baker. Applying this precedent to the St. Isidore charter school, their contract with the state of Oklahoma requires them to provide free public education, increased academic opportunities, and improvements in student learning, which are attributable to the state. Even if the management of their facilities or staff is a private action for St. Isidore, it does not negate the fact that their contract with and funding from the state of Oklahoma requires them to be state actors in providing free and public education to residents.

However, the Petitioners in Oklahoma v. Drummond argue that the charter school is not a “state actor” since Oklahoma charter schools need not follow the same core curriculum standards, teacher qualifications, or educational styles present in traditional state public schools. Consequently, St. Isidore, or any charter school in Oklahoma for that matter, engages in actions that fall outside the scope of the state because their classroom instruction does not resemble traditional Oklahoma public schools. Nevertheless, St. Isidore is still providing the basic role of a free, public education to citizens as outlined in their contract with Oklahoma. The fact that they are providing a curriculum that has a unique theological focus falls squarely under the broader responsibility that Oklahoma has given to St. Isidore to provide increased educational opportunities to students throughout the state. Although his reasoning is not precedent, Justice Thurgood Marshall’s dissent in Rendell-Baker formulates an instructive metric that can be used to understand this distinction when charter schools’ private actions become state actions: whenever “the school is performing a statutory duty of the State.” Providing some form of education is precisely the “statutory duty” of St. Isidore under Oklahoma law.

Consequently, the Establishment Clause requires Oklahoma to exclude religious public charter schools like St. Isidore. The most recent precedent on Establishment Clause issues comes from Kennedy v. Bremerton School District (2022), which established a history and traditions test to evaluate whether a state action endorsed or coerced the practice of religion (Kennedy was a case concerning the constitutionality of a football coach’s prayer after leading games for a public high school. It held that such a prayer was a private action by the coach and could not be construed as a religious endorsement by the school district or coercive towards players. This case marked a departure from the court’s prior Establishment Clause jurisprudence). Applying such a test to St. Isidore, it reveals the United States has a history of public support for private religious education but a rather limited public support for public religious education, with only practices like mandated prayer in schools persisting until 1962. The history of public support for private religious education is seen in the Court’s decision in Everson v. Board of Education of the Township of Ewing (1948), which held that public money can go to parochial schools for secular purposes like student transportation. In contrast, history tells a much different story for public support of public religious education, with the one exception mentioned above. Looking back to the “Common School Movement” of Massachusetts Education Secretary Horace Mann in 1837, “non-sectarianism” was a key principle that followed the spread of public education throughout the country in the 1800s and guided the country away from creating individual public schools for different religious sects.

By allowing St. Isidore to be established, Oklahoma’s approach to education will be incompatible with the American tradition of government-funded secular public education for students of all backgrounds. Specifically, Oklahoma will permit a government-funded institution to engage in Catholic theological teachings (which is required every school year for all K-12 students, including mandatory electives for high schoolers) and require attendance at one Mass session during the school year. Additionally, Catholic instruction is embedded within other typically secular subjects such as in elementary English language arts and middle school social studies classes. Although parents can seek an exemption to the mass requirement, St. Isidore allows for no such exemption from their religious educational requirements for their students, all of which is paid for by the state government. If Oklahoma permits this school, they will depart from the history and traditions of the Establishment Clause that does not allow them to endorse and coerce religious education in this manner.

Even leaving the history and tradition of public education aside, the tentative approval of St. Isidore represents a significant shift from Supreme Court precedent regarding the public funding of religious schooling. In Zelman v. Simmons-Harris (2002), the Supreme Court held that vouchers, backed by public money, could be put towards private religious schools because families had a choice to which school the vouchers would apply to. Similarly, in Espinoza v. Montana (2020), families determined what school their state-funded scholarship would be put towards, including religious schools. Most recently in Carson v. Makin (2021), the court held that Maine could not subsidize some private schools without subsidizing religious ones when parents directly received and applied the tuition assistance. The St. Isidore case is partly similar to these precedents because parents choose to send their children to school as opposed to the state requiring them to attend. However, these cases differentiate themselves from St. Isidore because, with religious public charter schools, the state is directly funding a religious institution instead of giving money to parents to decide how to spend it. This constitutes coercion on the part of the state because taxpayers do not have a choice as to where their money goes. Even by Justice Scalia’s narrower originalist understanding of coercion in his dissent in Lee v. Weisman (1992), the actions of Oklahoma would still be unconstitutional since they are a “financial support of religion generally, by public taxation.” 

Still, the backers of St. Isidore claim that the establishment of this novel Catholic charter school is fully protected under the Free Exercise Clause of the First Amendment. In Fulton v. City of Philadelphia (2021), the Supreme Court held that private organizations in contracts with the government cannot be expected to completely give up their religious liberties. Likewise, St. Isidore asserts that groups who want to pursue a charter school contract are prevented from doing so on the basis of having a religious character alone, referring to the Oklahoma statute that bars nonpublic sectarian schools and religious institutions from sponsoring charter schools since “charter school[s] shall be nonsectarian in [their] programs, admission policies, employment practices, and all other operations.”

However, these arguments do not simply overcome the Establishment Clause concerns; they only put St. Isidore’s Free Exercise claims in direct tension with the state’s obligation to not establish religion. Deferring to the Supreme Court’s precedent to resolve this, states have only provided substantial public funding and support to any type of religious school if parents and families receive the money and decide how to spend it. Further, the Court has recognized in Espinoza v. Montana, at most, that public aid and grants have gone to private religious schools in a non-preferential manner, but it has repudiated a doctrine of public religious instruction since the 1960s. St. Isidore can exist freely in the form of a private school and receive appropriate state benefits in this way, but its current existence as a religious public charter school is unprecedented. Whether one looks to the history of public education since Horace Mann or the court’s precedent since Engel v. Vitale, religious instruction has been distinct from public education, which was intended as a form of education meant to be as inclusive as possible that does mandate particular types of religious teachings. When Oklahoma decides that it wants secular public education and has a variety of contractors to select from, it has the ability to choose the ones most effective in delivering their goals, which is distinct from the relinquishing of religious exercise rights as understood in Fulton.

Although the current iteration of the Supreme Court holds a conservative lean and has shown deference to claims of religious liberty, Oklahoma Statewide Charter School Board v. Drummond would present a stark departure from precedent about private and public education distinctions as well as the traditions of secular public education in the United States of America if the Petitioners are victorious. The backers of St. Isidore have a compelling claim in their free exercise rights in creating a school and education pursuant to their devout Catholic beliefs, but the method in which they are attempting to do so is unconstitutional. It forces the government to promote religious education when its capacity has historically been limited to promoting secular instruction. While this case does not settle all conflicts between the Free Exercise and Establishment Clauses in public settings, it allows the Supreme Court to reaffirm the boundary between the government providing equal benefits and treatment to private religious schools and excessive coercion and endorsement of religion through public religious education.