THE OKLAHOMA BAR JOURNAL 12 | APRIL 2025 with Rosenberger v. Rector,14 the cases flipped as to the government action being challenged. Since then, the court has only decided cases in which the government denied funding based on religion. All three of the funding cases before the Roberts Court have challenged the government’s denial of funding to schools or families based on religion. The Roberts Court has found the government’s action to be unconstitutional each time. USING THE DATA TO MAKE A PREDICTION ABOUT THE COURT’S DECISION IN ST. ISIDORE What does all this predict for the government funding of St. Isidore as a religious school? In the St. Isidore case, the Oklahoma City and Tulsa Catholic dioceses applied to the Oklahoma Statewide Charter School Board15 to approve their contract to make St. Isidore of Seville Catholic Virtual School a statewide public charter school.16 As the name suggests, St. Isidore plans to operate as a Catholic school and incorporate the teachings of the Catholic Church into every aspect of the school, including curriculum.17 The board approved their contract.18 The Oklahoma Supreme Court held that the contract violated the Oklahoma Constitution and the Oklahoma Charter Schools Act, which prohibit the state from using public money for the benefit of religious institutions and require charter schools to be public and nonsectarian.19 The Oklahoma Supreme Court reasoned that when St. Isidore asked to be funded as a public school, it also applied to become a governmental entity and a state actor bound by the separation of church and state. The court distinguished St. Isidore’s case from those in which it allowed state-funded scholarships to be used at private religious schools because those scholarship funds did not directly fund religious institutions but instead went to families who made the choice to use the state funds at religious schools.20 St. Isidore’s Catholic identity increases its attraction as a religion-in-schools test case because it brings to mind the anti-Catholic roots of the failed federal Blaine Amendment of the 19th century and the present challenges to state laws that Oklahoma and other states have enacted to prohibit public support of religious institutions.21 Considering the trend data that indicates the Roberts Court is persistently activist in its stance, it’s no surprise that the court is hearing the case and has scheduled oral argument in St. Isidore for April 30. What’s more, the Roberts Court has applied a consistently accommodationist approach in cases where the state is challenged for denying benefits based on an institution’s religious status. So here, where a challenge to the government’s denial of funding is based on the free exercise clause and is brought before a court whose record is activist and accommodationist, the data suggests the U.S. Supreme Court will likely overrule the Oklahoma Supreme Court and accommodate St. Isidore as a religious charter under the Oklahoma Charter Schools Act. As with any gamble, playing the odds doesn’t guarantee a win. The court may instead find that the school’s church-based policies in admissions and operations discriminate in ways that disqualify it from public funds. St. Isidore Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. After looking at the types of religion-in-schools cases the Supreme Court has heard, analyzing the kinds of cases in which the court has been activist or restraintist and considering its tendencies to be separationist, neutralist or accommodationist, we may be able to predict the court’s decision in St. Isidore more accurately than we could a hand of poker.
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