St. Isidore of Seville Catholic Virtual School v. Drummond (2025) and the Supreme Court’s Embrace of the Privatization Movement

Introduction

When the current Supreme Court makes controversial power grabs, it likes to rationalize its actions as an effort to respect and reinvigorate legislative authority. Just take a look at its justification for any of its recent landmark decisions: Dismantling reproductive rights in Dobbs v. Jackson Women’s Health Organization (2022) (“Dobbs”)? [1] The Court claimed to be restoring power to state legislatures. Curtailing administrative discretion and deferring to judicial interpretation in Loper Bright Enterprises v. Raimondo (2024) (“Loper”)? [2] According to the Court, the decision just transferred authority back from the executive branch to the legislative. And so too on the issue of religious freedom in public schools, where the Supreme Court claims to be empowering local authority, but is instead suffocating the legislative process.

This trend will reach a climax in St. Isidore of Seville Catholic Virtual School v. Drummond (“St. Isidore”), a case set for oral argument before the Court on April 30, 2025 [3]. In St. Isidore, the Court will consider whether the state of Oklahoma must allow and fund religious charter schools. This is a blatant violation of the Constitution’s Establishment Clause. But given the Court’s recent decisions, St. Isidore School is likely to prevail.

St. Isidore of Seville Catholic Virtual School is a private, religious, K-12 institution run by the Catholic Church in Oklahoma. The school applied to participate in Oklahoma’s charter school program, where private institutions can contract with the state to receive funding and make the school free for students. Upon St. Isidore’s acceptance into the program, the Republican attorney general of Oklahoma sued, eventually winning in the Oklahoma Supreme Court. The case has now been appealed to the Supreme Court of the United States.

The Supreme Court must first apply the “state action doctrine” to decide whether the charter school is acting as a private group or as a government entity. Then, the Court must decide how to navigate the inherent tension between the Free Exercise Clause and the Establishment Clause in the context of charter schools.

If the Court expands upon its recent decisions and rules in favor of St. Isidore — finding both that charter schools are not public actors and that funding a religious charter school is not only acceptable but also required under the Free Exercise Clause — it will have drastic constitutional and practical implications. Not only would such a decision weaponize the Free Exercise Clause while weakening Establishment Clause protections, it would also lend credence to efforts to desecularize and privatize K-12 education, fundamentally disrupting the foundation of American civil liberties.

Context

Consider why this case exists. Why is the charter school movement so prominent? And, more importantly, why does a religious school want or need to apply for charter school status?

From fall 2010 to fall 2021, charter school enrollment in the United States leapt from 1.8 million to 3.7 million students [4]. Charter schools now enroll approximately 7 percent of all public school students. Notably, in the five years since the pandemic, charter schools gained 400,000 students, while district public schools hemorrhaged almost 1.8 million. [5]

The charter school movement originated from a desire for more innovation and experimentation in instructional methods; charter schools would test pedagogical methods, which could then be applied in public schools [6]. But charter schools quickly blossomed into autonomous operations, thriving on the “school choice” movement — the desire by parents to have greater say in which schools they send their children to. Quality, however, varies widely among charter schools. A recent study found that charter schools produce on average greater academic growth than their public school counterparts, but charter schools can also perpetuate racial segregation and leave behind students with special needs, all without accountability to politicians or voters [7] [8].

While charter schools are booming across the United States, Catholic schools are floundering. There were more than 12,000 Catholic schools in the 1960s [9]. Today, there are less than 6,000. A study from Boston College’s Catholic Education Research Initiative found a correlation between declining enrollment at Catholic schools and the opening of nearby charter schools: The longer the charter school stayed open, the more likely the Catholic school would close [10].

Catholic schools have identified a way to solve this problem: vouchers. Voucher programs allow states to subsidize religious education by providing vouchers to parents to pay private school tuition, often at sectarian schools. Oklahoma’s St. Isidore of Seville Catholic Virtual School built on the momentum of the charter school movement, but also came up with a way to preserve the religious identity of the school, securing a funding source without sacrificing the sectarian overtones of the institution. While it is not inherently a problem that religious schools are seeking ways to increase enrollment and stay financially solvent, the Constitution is endangered when religious schools weaponize the Free Exercise Clause and undermine the Establishment Clause to do so — with a judiciary more than willing to legitimize such efforts.

The state action doctrine

The Supreme Court must first consider whether charter schools are public or private institutions. In many ways, charter schools act like private schools: They can design their own curriculum, may choose their own personnel, and are managed by a private governing body, not a school board. However, they receive public funding and are labeled as “public” by Oklahoma law because they are free and funded by tax dollars. Some aspects of their management are also overseen by the state. Their curriculum, for example, although designed independently, must be reviewed and approved by the Oklahoma government, and they must administer the same standardized tests as public schools. This sets up an interesting dilemma. The Petitioner in St. Isidore incorrectly argues that charter schools are private in every way that matters. More specifically, the Petitioner claims that the point of charter schools is that they are not government bodies — they offer different and diverse educational opportunities to parents dissatisfied with public options. Thus, they argue, it misses the point to label them as public actors. But I think the Respondent gets it right. In their argument, Respondent reiterates the facts noted above: Charter schools are funded, regulated, and described as public schools. And most convincingly, a religious charter school would have to get state approval for its teaching of Catholic doctrine, which raises obvious Establishment Clause concerns.

Circuit courts are divided on this rather technical question. The First, Third, and Ninth Circuits have held that charter schools are not state actors; the Fourth Circuit that they are [11]. While the legal arguments on either side are plausible, they miss the bigger point — the lay person instinctively sees charter schools as an extension of the government. Thus, even if religious charter schools do not — as a legal matter — fall under the state action doctrine, providing public funds for their function would be interpreted by the ordinary person as state entanglement in religious matters.

The religious clauses

Even if the Court decides that charter schools are private institutions, it would set a dangerous precedent for the Justices to rule in favor of St. Isidore. This decision would not be unusual for a Court that has all but abandoned the Establishment Clause in recent years. As Justice Sotomayor emphasized in her dissent in Carson v. Makin (2022) (“Carson”), the most recent Establishment Clause case before the Court, “[i]n just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars” [12]. Sotomayor’s analysis is prescient, and the Court may go one step further in St. Isidore by allowing religious schools to benefit from all the features of a public institution.

Back in 2004, the Court held in Locke v. Davey that the government did not need to provide a scholarship for a student to pursue religious education, e.g. training to become a member of the clergy. But that defense of the Establishment Clause is nowhere to be seen on the modern Court, which has all but capitulated to free exercise demands and forgotten about the Establishment Clause.

Three cases exemplify this trend: Trinity Lutheran v. Comer (2017) (“Trinity Lutheran”), Espinoza v. Montana Dept. of Revenue (2020) (“Espinoza”), and Carson. In 2017 in Trinity Lutheran, the Court ruled that religious schools must receive equal access to a public benefits program for playground resurfacing. The Court drew on a use/status distinction to do so, holding that states had to support religious schools as long as the money was going toward a secular purpose that is universal across schools, like building playgrounds, and not directly financing religious instruction [14]. In 2020, Espinoza diverged from this secular sentiment, as the Court held that a state must provide tax credits for all donations made to private school tuition scholarships, whether the school was secular or sectarian [15]. This case turned on exclusion rooted in the religious status of the schools and did not endorse government funding of religious teaching. Finally, in Carson, decided in 2022, the Court went one step further, requiring that state voucher programs allow parents to use the money to send their children to religious schools, eviscerating the “use/status” distinction under the auspices of school choice and parental freedom [16]. In short, the Court has descended very far down the slippery slope from “may” to “must,” as Justice Stephen Breyer outlined in his Carson dissent — while once states merely could fund religious education, they now must [17].

It may seem that St. Isidore is a natural extension of these decisions, which demand state neutrality when funding or regulating private education institutions; it is not. Even the aforementioned cases involved only indirect support for religious institutions — either funding a grant, voucher, or something unrelated to a sectarian purpose. Allowing for religious charter schools would abolish even the appearance of a division or intermediary between government money and religious indoctrination. As a result, religious charter schools could operate in a “Constitution free zone,” where they receive public benefits without any associated constitutional obligations. [18]

Conclusion

The Supreme Court has, over the past 10 years, dismantled the delicate balance between the Establishment Clause and the Free Exercise Clause. Education has been and remains a critical flashpoint for the most important and contentious social and legal issues of our time. Public education is the bedrock of American democracy. When the Court challenges the basic tenets of public education — that the system is secular, universal, and free from outside influence — it gravely undermines American democracy as well.

Bibliography

[1] Dobbs v. Jackson Women’s Health Organization (2022), (Breyer, Sotomayor, and Kagan, JJ., dissenting, 24)

[2] Loper Bright Enterprises v. Raimondo, 603 U. S. 369 (2024) (Kagan, J., dissenting, 3)

[3] “St. Isidore of Seville Catholic Virtual School v. Drummond,” accessed April 2, 2025, https://www.scotusblog.com/case-files/cases/st-isidore-of-seville-catholic-virtual-school-v-drummond/

[4] “The NCES Fast Facts Tool Provides Quick Answers to Many Education Questions (National Center for Education Statistics).” Accessed April 2, 2025. https://nces.ed.gov/fastfacts/display.asp?id=30.

[5] “New Report Shows Charter School Enrollment Grows Across the Nation.” Accessed April 2, 2025. https://publiccharters.org/news/new-report-shows-charter-school-enrollment-grows-across-the-nation/.

[6] Zachary Jason, “The Battle Over Charter Schools,” Harvard Graduate School of Education Magazine, May 20, 2017, https://www.gse.harvard.edu/ideas/ed-magazine/17/05/battle-over-charter-schools.

[7] Stanford, Libby. “Charter Schools Now Outperform Traditional Public Schools, Sweeping Study Finds.” Education Week, June 6, 2023, sec. Policy & Politics, School Choice & Charters. https://www.edweek.org/policy-politics/charter-schools-now-outperform-traditional-public-schools-sweeping-study-finds/2023/06.

[8] Peter Greene, “Four Ways Charter Schools Undermine Good Education Policy,” Forbes, accessed April 2, 2025, https://www.forbes.com/sites/petergreene/2022/11/10/four-ways-charter-schools-undermine-good-education-policy/.

[9] Michael Ortner, “Catholic Schools: Boom to Bust to . . . Renewal?,” Word on Fire, January 21, 2025, https://www.wordonfire.org/articles/catholic-schools-boom-to-bust-to-renewal/.

[10] Kevin Mahnken, “Study: Charters Hastened Catholic School Decline. Will ESAs Slow the Process?,” The 74 Million, October 11, 2024, https://www.the74million.org/article/study-charters-hastened-catholic-school-decline-will-esas-slow-the-process/.

[11]. See brief of amici curiae state of South Carolina and 11 other states in support of petitioners, “It’s unsurprising, then, that the First, Third, and Ninth Circuits have concluded that the academic and pedagogical choices of charter schools do not amount to state action…Only the Fourth Circuit and the Oklahoma Supreme Court have held otherwise,” 11-12.

[12] Carson v. Makin (2022), (Sotomayor, J., dissenting, 3).

[13] Locke v. Davey (2004), 1.

[14] Trinity Lutheran v. Comer (2017), 8.

[15] Espinoza v. Montana Dept. of Revenue (2020), 20.

[16] Carson v. Makin (2022), (Breyer, J., dissenting, 14).

[17] Carson v. Makin (2022), (Breyer, J., dissenting, 7).

[18] Peter Greene, “A Potential Solution To Charter School Religious First Amendment Problems,” Forbes, accessed April 2, 2025, https://www.forbes.com/sites/petergreene/2024/12/30/a-solution-to-charter-school-religious-first-amendment-problems/.