“Mayday, Mayday!” is an internationally recognized maritime signal of distress indicating a grave and imminent danger to life. After oral arguments yesterday, on the eve of May 1, at the U.S. Supreme Court over the constitutionality of a Catholic virtual charter public school, it unfortunately appears that our secular public schools may soon be on life support.
The case involves two Catholic dioceses in Oklahoma that argue the state is required to approve their virtual Catholic school, St. Isidore of Seville, as a public charter school. This would be the first religiously segregated school in the United States to be fully publicly funded. The school’s open purpose is “preparing students as Catholics for life,” including to “build a relationship with Jesus.” The dioceses also have been open about their plans to openly indoctrinate based on religious dogma.
Justice Amy Coney Barrett recused herself, likely due to her close connection to the Notre Dame law clinic that incubated the scheme, leading to speculation that the court might be deadlocked. Chief Justice John Roberts, the swing voter among the archconservative Roman Catholic majority on the high court, made several statements that seemed to indicate he may be willing to rule in favor of the religious charter school.
What was shocking, even for the extremist justices, was their casual rejection of our public schools and their long history of protecting student conscience by being free from religion. Justice Brett Kavanaugh, who complained that excluding religious schools from a charter school program “seems like rank discrimination,” appeared to express the consensus of some of his colleagues.
The three liberals were valiant in their questioning and in the conclusions they drew. Justice Sonia Sotomayor pursued a train of thought she has previously made, that “we’re willing to say the Free Exercise provision trumps the Establishment Clause.” She elaborated, “What you’re saying is the Free Exercise Clause trumps the essence of the Establishment Clause because the essence of the Establishment Clause was we’re not going to pay religious leaders to teach their religion. That was, is, and has always been the essence, and here we’re paying Catholic leaders, Catholic teachers — you can only be a teacher in this school if you’re willing to accept the teachings of the Catholic Church.”
Justice Ketanji Brown Jackson asked whether the 1994 federal law creating the charter school program, which says charter schools must be nonsectarian, would now be considered unconstitutional. “As I see it, [St. Isidore] is not being denied a benefit that everyone else gets,” she said. “It’s being denied a benefit that no one else gets, which is the ability to establish a religious public school.”
Justice Elena Kagan, mentioning the incentives for religious groups to start charter schools if the court approves St. Isidore, warned: “There’s a line out the door, if you can do this consistent with your religious beliefs.”
Oklahoma attorney Gregory Garre, arguing against the constitutionality of the school, pointed out that if the court approves religious charter schools, it would create “uncertainty, confusion and disruption.” He cautioned, “It would result in the astounding rule that states not only may, but must fund and create public religious schools,” calling it “an astounding reversal from this court’s time-honored precedents.” Oklahoma’s Constitution, like most state constitutions, requires that public schools be free, open to all, funded by taxpayers and therefore prohibits the “teaching of religion as truth” in public schools.
Oklahoma Attorney General Gentner Drummond sought to block the religious charter school, winning a strong ruling against it by Oklahoma’s Supreme Court, which was later appealed to the U.S. Supreme Court. The Freedom From Religion Foundation and coalition partners filed an amicus brief in support of Drummond. The coalition has its own federal challenge, now on hold, against St. Isidore.
James Madison, the architect of our Constitution and the Bill of Rights, famously decried even a “thruppence” of public funds going to religious schools. He successfully argued in his day that not even three cents of public money should be spent on religion or religious schools. That’s all the “history and tradition” the high court should be looking at.
The principle at stake is so clear. Public schools, supported by all taxpayers, exist to educate, not indoctrinate. Public schools do not discriminate and are open to all. Public schools unite; religiously segregated schools divide. Nobody should ever be taxed to support someone else’s religion or religiously segregated schools. As President Grant put it back in 1875, “The matter of religion must be left to families, churches and private schools, supported entirely by private contributions.”
Comments FFRF Co-President Annie Laurie Gaylor: “If the Supreme Court approves this scheme, it will go viral across the land, ultimately defunding our public schools — the bedrock of our democracy — a blow that our public schools and our secular democracy may never recover from.”
The Freedom From Religion Foundation is a U.S.-based nonprofit dedicated to promoting the constitutional principle of separation between state and church and educating the public on matters of nontheism. With more than 42,000 members, FFRF advocates for freethinkers’ rights. For more information, visit ffrf.org.
Photo—FFRF Co-Presidents Annie Laurie Gaylor and Dan Barker at U.S. Supreme Court on April 30, 2025, during the St. Isidore oral arguments. (Photo by Chris Line.)
