This case builds on a series of decisions from the Roberts Court that have steadily eroded the wall between church and state. In Trinity Lutheran v. Comer, the court allowed public funds to be used for secular purposes by religious institutions. Espinozav. Montana Department of Revenue expanded this principle, ruling that states cannot exclude religious schools from publicly funded programs. And in Carson v. Makin, the court went further, mandating that state voucher programs include religious schools, arguing that exclusion constitutes discrimination against religion.
As the justices deliberate, they would do well to consider not just the legal arguments, but also the practical and moral consequences of their decision.
Chief Justice John Roberts, writing for the majority in Carson, stated, “[i]n particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” On its face, this reasoning frames the issue as one of fairness—ensuring religious entities are not treated unequally. But the deeper implications of this logic are far more radical.
As Justice Sonia Sotomayor warned in her dissent, this interpretation fundamentally redefines the Free Exercise Clause, equating a government’s refusal to fund religious institutions with unconstitutional religious discrimination. Justice Stephen Breyer took this concern a step further, pointing to the court’s own precedent to highlight the dangerous trajectory of its rulings:
We have previously found, as the majority points out, that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” We have thus concluded that a State may, consistent with the Establishment Clause, provide funding to religious schools through a general public funding program if the “government aid… reach[es] religious institutions only by way of the deliberate choices of… individual [aid] recipients.”
Breyer then underscored the significance of this distinction:
But the key word is “may.” We have never previously held what the court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
Finally, he distilled the implications into a warning: “What happens once ‘may’ becomes ‘must’?”
That shift—from allowance to obligation—could force states not only to permit religious education in publicly funded programs, but to actively finance it, eroding any semblance of neutrality between public and religious schooling. This transformation threatens to unravel the Establishment Clause’s core protection: that government does not privilege or compel religious exercise.
Now, the Oklahoma case brings Breyer’s warning into sharp focus. The petitioners are asking the court to declare that charter schools are not state actors—meaning they would be free from public accountability and regulations, including those related to discrimination or special education. At the same time, they argue that public funds must be made available to religious charters. The implications of such a ruling could reverberate across the country, reshaping education in profound and troubling ways.
The May-to-Must Transformation and Its Far-Reaching Consequences
If the Court sides with St. Isidore, the ripple effects could be seismic, triggering a wave of religious charter school applications and fundamentally altering the landscape of public education. Here’s how:
- A Surge in Religious Charter Schools
Religious institutions, particularly those struggling to sustain traditional parochial schools, would have a financial lifeline. Charter subsidies, which often surpass voucher amounts, would incentivize religious organizations to enter the charter school market. For years, leaders in some religious communities have sought public funding to buoy their schools, and a decision in favor of St. Isidore could provide the legal green light. The result? A proliferation of religious charters, funded by taxpayers but largely free from public oversight.
- Erosion of Protections for Students with Disabilities
The implications for students with disabilities are especially concerning. Under the Individuals with Disabilities Education Act’s implementing regulations, a student with disabilities who is “placed in or referred to a private school or facility by a public agency…[h]as all of the rights of a child with a disability who is served by a public agency.” Yet, a ruling in favor of St. Isidore risks undermining these guarantees by creating a loophole for private religious charters to skirt IDEA’s requirements.
This concern is not just theoretical. As I’ve argued elsewhere, the hybrid nature of charter schools already complicates questions of accountability and state action, particularly when it comes to safeguarding student rights. Allowing religious charters to operate free from IDEA’s obligations would further erode the fragile legal protections students with disabilities rely on—protections that are already too often disregarded in practice.
- Undermining Public Health and Safety Policies
The pandemic underscored the challenges of balancing public health mandates with constitutional protections for religious freedom. In 2020, a federal judge in Kentucky struck down the state’s attempt to close religious schools during a Covid-19 spike, even as public and secular private schools complied. Extending public funding to religious charters could further erode the state’s ability to enforce neutral regulations, from health measures to curriculum standards. Such decisions privilege religious institutions over secular ones, creating a patchwork of inconsistent rules that could undermine public safety and equity.
Toward Transparency and Accountability
Can these challenges be mitigated? Some experts argue for stricter regulations to preserve the public nature of charter schools. Bruce Baker, a professor of education finance, suggests limiting charter authorization to government agencies and requiring boards and employees to be public officials. Such reforms could ensure that charters remain accountable to taxpayers and subject to the same constitutional constraints as public schools.
Other scholars, like Preston Green and Suzanne Eckes, propose requiring religious charters to forgo certain exemptions if they wish to receive public funding. Specifically, they recommend restructuring charter school boards as government-created and controlled entities to ensure they are unequivocally recognized as state actors subject to constitutional obligations. For example, this would require religious charters to comply fully with anti-discrimination laws and other public mandates, maintaining the balance between religious freedom and public accountability.
The Larger Threat to Public Education
Even with these potential safeguards, the broader implications are sobering. If the court rules in favor of religious charters, states will face difficult choices: increase taxes to fund an expanding universe of religious and secular schools, divert money away from public schools, or create new bureaucracies to regulate religious institutions. Taxpayers could find themselves funding schools tied to a bewildering array of faiths, from mainstream denominations to fringe sects.
As the justices deliberate, they would do well to consider not just the legal arguments, but also the practical and moral consequences of their decision. What happens to a society when its public institutions are splintered along religious lines? And what happens to the students and families who depend on those institutions for equity, opportunity, and inclusion?
The answers to these questions will shape the future of American education—and the values we choose to uphold.
