Five Takeaways from the Supreme Court’s decision in St. Isidore v. Drummond

By Napa Legal Staff

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On May 22, the US Supreme Court released its opinion in St. Isidore of Seville Catholic Virtual School v. Drummond. Followers of this blog are likely already familiar with the case. St. Isidore, a Catholic virtual school, believed that it could not properly be excluded from a charter school program in Oklahoma without violating its right to free exercise of religion. The Oklahoma Supreme Court ruled against St. Isidore, holding that charter school funding for a religious school violated both the US Constitution and Oklahoma State Constitution.  

The US Supreme Court agreed to hear the case in order to address three legal issues:  

1. Whether the choices and operations of a private school constitute “state action” because the school contracts with the state as a charter school;

2. Whether the Establishment Clause allows or requires a state to exclude schools from a charter school program solely because the schools are religious; and

3. Whether the Free Exercise Clause prevents exclusion of religious schools from a charter school program solely because the schools are religious.

These are important questions for the future of religious liberty and educational freedom. Unfortunately, despite high hopes that many had for the Supreme Court’s decision in St. Isidore, the decision in this case did not provide answers.

The Court issued a simple opinion containing no detailed explanation for its decision: “PER CURIAM. The judgment is affirmed by an equally divided Court. JUSTICE BARRETT took no part in the consideration or decision of these cases.” That’s it. After much legal work and media attention, the Court did not answer the questions that were addressed in the opinion.

Note: “per curiam” is a legal term that may be unfamiliar to nonlawyers. It simply means the opinion was issued by the Court as a whole, not by a particular judge. While generally the Court issues a majority opinion (and perhaps a dissenting opinion disagreeing with the majority), in this case there was no majority and so there can be no actual legal opinion written, which explains the short, uninformative opinion upholding the judgment from the Oklahoma Supreme Court.

What should we take from the (admittedly disappointing) result in St. Isidore? Unfortunately, not much. While there is very little in the decision on which to speculate, a few takeaways can still be useful to understand what happened and to reflect on what might come next.

1. Remember that this case sets no precedent. Proponents of religion and religious liberty were hopeful that St. Isidore would continue the positive developments in caselaw to clarify the proper boundaries of the Establishment Clause and the protections of the Free Exercise Clause. While the case did not do so, it also did no harm to the religious liberty cause. For example, a negative opinion could have held that a charter school contract with a religious school violates the Establishment Clause. So while the lack of a positive ruling is disappointing, remember that no precedent is set either way by the Court’s decision in St. Isidore.

2. The opinion of the Court tells us that the court was “equally divided,” which means that the decision was a 4-4 split. The opinion is unsigned, however, so it does not tell us which justices voted which way. This result makes it impossible to know what the reasons were for the split decision. We can guess which justices voted for and against St. Isidore, but we do not have any insight into why each justice voted the way he did. Speculations abound on the internet, but we think it would be unwise to try to interpret the reasoning of any individual justice since the opinion is unsigned.

3. Justice Amy Coney Barrett recused herself from this case for personal reasons. While we do not know what those personal reasons were, we can guess that Justice Barrett had some personal connection to St. Isidore’s school or to one of the parties that helped St. Isidore at some point in its formation or in the litigation. Whatever the reason, Justice Barrett’s absence led to the split decision that produced no precedent.

4. Even though there was no decision resolving the issue, the St. Isidore case has opened a new conversation in the religious liberty movement: the idea of explicitly religious charter schools has entered the public discourse. A few years ago, before the Supreme Court decided cases like Trinity Lutheran and Carson v. Makin, the thought of attempting to organize a religious school and apply for publicly funded charter school status was unheard of. This is a hopeful sign that the movement to restore religion to its proper place in the public square continues to make progress.

5. Not only is an unexplained 4-4 decision not the end of the public conversation about religious charter schools, but it may not be the end of the legal fight on this issue either. It is possible – and perhaps fairly likely - that another religious school in another state will continue what St. Isidore started and apply for charter school status. And if that school has no connection to Justice Barrett, she will be able to participate in that case. While we do not predict the outcomes of cases before they occur, having all nine US Supreme Court justices involved in such a case would inevitably lead to a different outcome. Stay tuned!

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