And while a few charter and school choice leaders are quietly supporting the proposed St. Isidore of Seville Catholic Virtual School, seeing it as a watershed moment for religious freedom, others are saying, in so many words: Be careful not to drown.

While public funding would bring unprecedented growth and financial stability to such programs, it could also create a fraught path to the religious freedom they鈥檙e seeking, as the burden of complying with court orders and myriad regulations, which even autonomous charters face, could be overwhelming. 

The school and others like it will almost certainly be tied up in litigation for months or years, said Greg Richmond, of the Archdiocese of Chicago Catholic Schools. And that鈥檒l be bad, since it will take precious autonomy away from what should be independent schools鈥� sole decision-making power.

Richmond said he looked the other day at the website and counted more than 150 regulations, including meeting agenda formats, residency requirements, Open Records Acts rules and more. 

鈥淚t’s odd to try to fit a religious school into that regulated charter framework,鈥� he said. 鈥淭he accountability that comes with charter schools, I think, would be a shock to many Catholic schools in terms of the quantity of measures 鈥� academically, financially, operationally.鈥�

That said, what happens when a Catholic charter school teacher, for instance, takes to Facebook to advocate for abortion rights? Are the teacher鈥檚 free speech rights protected, as in a public school? Or can the charter school dismiss her because she’s advocating against the teachings of the church?

For their part, charter proponents fear that while the new school may be a good political fit in deep-red Oklahoma, the legal precedent it sets could both damage and perhaps even decimate the larger charter sector in coming years. 鈥淚t will give opponents of charter schools yet another reason to claim charter schools are not public schools,鈥� said Richmond, who formerly led the National Association of Charter School Authorizers. 鈥淪o that does represent a threat to charter schools.鈥�

Aside from betraying charter schools鈥� implicit vow to welcome and educate all students, they say it could further erode charters鈥� , especially in blue states. They鈥檝e vowed to fight what could soon be one of their own.

In the most recent development, Oklahoma鈥檚 virtual charter school board last month turned down an application from the Archdiocese of Oklahoma City to open the new virtual school, a move that proponents say was largely pro forma. 

But Nina Rees, president and chief executive officer of the , said the board鈥檚 hesitation likely stemmed from 鈥渢he strong probability of breaking state law if the school is approved. Should a charter school be authorized that falls outside the scope of the law, it will certainly be challenged in court, and we will be on the side of those seeking to uphold the law and affirm the public, non-sectarian nature of charter schools.鈥�

Public or private actors?

While the Oklahoma case plays out, both sides say the coming weeks could also set in motion one of the most consequential federal court decisions ever about the future of charter schools: The U.S. Supreme Court will soon decide whether to take up a that could wreak havoc with the bedrock idea that charter schools are public schools, as they鈥檝e maintained since the first one opened more than 30 years ago.

The case, , pits three female students against their 鈥渢raditional values鈥� school, which has required that they wear skirts. In doing so, they say, the school violated their civil rights 鈥� its founder has called female students 鈥渇ragile vessels鈥� and believes the dress code will preserve chivalry, ensuring that girls are treated “courteously and more gently than boys.鈥�

In court filings, the school argued that even though it enjoys public funding, it is a private entity and not a 鈥渟tate actor,鈥� like district schools. So the Constitution鈥檚 14th Amendment doesn鈥檛 apply to it, the school maintained. The 4th U.S. Circuit Court of Appeals in Richmond last year rejected that argument, setting up a possible hearing in Washington, D.C., before a high court that has already struck down states鈥� so-called Blaine amendments, allowing public funds to flow to religious schools in small communities without sufficient school capacity.

鈥淚t’s not a new conversation,鈥� said Rees. 鈥淲hat’s new about it is that we have a more conservative Supreme Court.鈥�

For Rees, who served as a top official in George W. Bush鈥檚 Education Department, the truth of the matter seems clear: 鈥淎s public schools, we can’t teach religion.鈥�

They also must open their doors to anyone, both students and staff, she said. That could potentially bump up against schools that, as private operations, can openly reject candidates that don鈥檛 uphold their beliefs.

Rees and others say the path forward for funding these schools would more appropriately 鈥� and legally 鈥� be found in another recent development taking place in statehouses nationwide: taxpayer-funded education savings accounts, or ESAs, vouchers and tax credits, which in a few states offer as much money to families for private schooling as charter schools get per pupil.

鈥淚n some respects, if you wanted to promote religious education,鈥� Rees said, 鈥渢he ESA route will get you to that end goal faster, without rules and regulations that come if you open a religious charter school.鈥�

In January, the charter school network Great Hearts, which operates classical education schools in four states and online, said it was doing just that: It announced it was opening a pair of Christian academies in the Phoenix area. But the schools, the network said, would be , funded by the state鈥檚 ESA program.聽

Jay Heiler, Great Hearts鈥� CEO, said Arizona鈥檚 Empowerment Scholarship Accounts are worth about $7,000 per student, not quite enough to fund a successful private school, but enough 鈥渨hen supplemented with some philanthropic effort, which we’re out there pushing to try to make ends meet, partner-to-partner, with churches that have some existing classroom infrastructure.鈥�

But Brett Farley, executive director of the , which represents the church on public policy issues, said that in most states, ESAs don鈥檛 typically provide anything near full per-pupil funding, leaving students a dearth of options, especially in rural areas.

While Rees鈥� group has vowed to oppose schools like St. Isidore and efforts to reframe charters as private actors, others aren鈥檛 so sure. 

Heiler said Great Hearts, which has operated charter schools for more than 20 years, 鈥渨ill continue to follow that pathway,鈥� keeping its religious schools private. But it also in the North Carolina case, arguing that the Supreme Court should decide that charter schools 鈥渁re not presumptive state actors.鈥� Failure to do so, it said, 鈥渨ill wreak havoc鈥� on education systems more broadly and innovative charters specifically.聽

Held up in court 鈥榝or a long time鈥�

Farley said the Oklahoma virtual charter board鈥檚 rejection last month was largely routine, giving the archdiocese 30 days to revise aspects of the plan that include how they鈥檒l provide rural broadband statewide and special education services to disabled students. He said the board also wanted to know more about how the archdiocese will address the question of whether a religious public school violates state statute.

鈥淲e鈥檙e confident we’ll be able to answer all three of those questions sufficiently, and then we’ll move on to a vote,鈥� he said. He anticipated that approval would take place in June. 

But in interviews, he whether the new virtual school would admit LGBTQ students or hire such staff members, saying it would follow state regulations while maintaining its right to operate according to religious beliefs. Asked if gay, lesbian or transgender educators are invited to apply for employment at the school, Farley declined to comment. Like other public schools, charters are prohibited from discriminating based on religious belief, gender identity or similar factors.

He has said he believes that charter schools are non-state actors 鈥� Oklahoma鈥檚 charter framework, he said, is 鈥渧ery loose.鈥�

M. Karega Rausch, president and CEO of the charter authorizers鈥� group, said even Oklahoma law is clear: It鈥檚 unlawful for a public school, including a charter school, to provide a sectarian education.

Whatever happens with the Oklahoma board, Rausch said, the case will be tied up in litigation 鈥渇or a long time.鈥�

If the Oklahoma board ultimately rejects the St. Isidore application, the archdiocese can appeal the decision to the state board of education.

Gov. Kevin Stitt has for the effort, but new Attorney General Gentner Drummond has slightly complicated the process: In February, he withdrew an opinion from his predecessor that said the state board would be on solid legal ground if it approved a religious charter school.聽

His said state law is 鈥渃urrently unsettled鈥� as to whether charter schools are so-called 鈥渟tate actors鈥� or private school operators. Like many in the sector, he鈥檚 awaiting the decision in the North Carolina case.

鈥楶roceed with caution鈥�

Kathleen Porter-Magee, superintendent of , a network of 11 independent Catholic elementary schools in New York City and Cleveland, said high-performing private schools like hers would love the extra per-pupil allotment that comes with being a charter school: It costs her about $11,500 per student to keep the doors open, yet her students bring in just $800 apiece from New York state in the form of reimbursements for such as required assessments, immunizations and attendance reports.聽

Were Partnership鈥檚 New York schools to become charters, they鈥檇 stand to bring in more than $16,000 per pupil, which the city鈥檚 charter schools typically receive, and about half of what they鈥檇 get if they were district schools. 鈥淲e wouldn’t know what to do with that much money,鈥� she said. 鈥淚t would be just absolutely game-changing for us.鈥�

But it would also complicate matters. 鈥淗ow much freedom do those religious organizations have to live out their faith every day if they are technically running public charter schools?鈥� she asked.

Like many in the school choice world, she鈥檚 closely watching what happens in Oklahoma. She鈥檚 鈥渄eeply conflicted鈥� about the case: Denying public funding to non-profits because of their religious status 鈥渇eels wrong,鈥� she said, so she supports the archdiocese鈥檚 application for charter status.

鈥淔rom a constitutional standpoint, I think it is the right decision. I think it makes sense. But I just think it’s like, ‘Proceed with caution.’ 鈥�

The U.S. Supreme Court on Friday announced that it will hear聽,聽a case involving Maine鈥檚 tuition assistance program. Following the court鈥檚 decision last year in聽Espinoza v. Montana Department of Revenue,聽plaintiffs in the case argue that excluding religious schools from the program is a violation of their constitutional rights, while the state has said the program is only meant to provide students a public education they can鈥檛 access in their own community.聽

School choice advocates celebrated the court鈥檚 decision. In a statement, Leslie Hiner, who leads EdChoice鈥檚 legal efforts, said,聽鈥淲e applaud the action of the Court in agreeing to hear a case brought by parents in Maine who have been denied the opportunity to send their children to a school of faith using the state鈥檚 town tuitioning vouchers.鈥�

The U.S. Supreme Court will discuss Thursday whether to hear a case that could settle for good whether states can exclude religious schools from publicly funded voucher programs.

The argument in is over Maine鈥檚 tuition assistance program, which pays for students in towns without a public school to attend another one of their choice 鈥� public or private 鈥� as long as it鈥檚 not religious.

In October last year, the 1st U.S. Circuit Court of Appeals upheld the religious exclusion, and the plaintiffs appealed to the Supreme Court. But earlier this month the 2nd Circuit reached the , ruling that students in a similar program in Vermont can use public funds at religious schools.

鈥淚t is a mess, to put it mildly,鈥� said Michael Bindas, a senior attorney with the libertarian Institute for Justice, which is representing the two families in Maine who sued over the state鈥檚 policy. The contradiction 鈥渃ries out for Supreme Court review, and only the Supreme Court can resolve it,鈥� he said.

This time last year, school choice advocates won a major victory in Espinoza v. Montana Department of Revenue, when the court ruled 5-4 that officials could not exclude religious schools from a state tax credit scholarship program simply because they are religious. It was a major setback for states with so-called Blaine amendments, 19th century laws that prevent public funds from supporting religious schools. The Espinoza ruling sparked a renewed push at the state level to expand such scholarship programs, and former Education Secretary Betsy DeVos the decision opened the door for religious-oriented charter schools.

The justices, however, left one issue unsettled. The Espinoza ruling means states can鈥檛 prohibit religious schools from participating in a school choice program because of their religious status, but the justices didn鈥檛 resolve whether states could exclude schools because they teach students about religion.

The Institute for Justice addressed this in to the court following the 2nd Circuit鈥檚 decision in the Vermont case, referring to 鈥渢he utter disarray of the law in this area.鈥�

The court typically schedules days when the justices discuss current cases as well as whether to hear or reject appeals. The 鈥渙rder list鈥� is usually released a day or so after justices hold a conference, Bindas explained. That means the court could announce as soon as Monday whether they鈥檒l hear the Carson case, but a quick decision could mean they鈥檙e going to pass, he added. If the justices decide to hold it over for a 鈥渃leanup conference鈥� next week, that could signal their intention to hear the case.

Maine Attorney General Aaron Frey has said that the state鈥檚 law doesn鈥檛 discriminate against religious schools because it is 鈥渟imply declining to pay for religious instruction that would be unavailable in a public school.鈥� Ted Fisher, spokesman for the Vermont Agency of Education, said the department doesn鈥檛 comment on pending litigation.

Anti-discrimination policies

If the justices agree to hear it, Carson could be the first school choice case before the court since the confirmation of Associate Justice Amy Coney Barrett, a conservative Catholic who served as a trustee for a religious school that participates in Indiana鈥檚 school choice program and doesn鈥檛 welcome children with same-sex parents.

The Espinoza ruling was a 5-4 decision, and conservatives now hold a 6-3 supermajority on the court.

Some legal experts have suggested the court鈥檚 decision last week in 鈥� a case involving a Catholic social services agency that opposes certifying same-sex couples as foster parents 鈥� would have an impact on school voucher programs.

In Fulton, the court ruled unanimously that the city violated the agency鈥檚 First Amendment鈥檚 religious freedom protections by requiring it to give up its opposition to same-sex relationships in order to receive a government contract. The connection to school choice is that religious schools, such as the one where Barrett served as a trustee, are often opposed to hiring LGBTQ staff or admitting gay students or those with gay parents.

But the impact of the decision on school choice programs is limited. While the opinion was unanimous, the court focused on a narrow exemption in the city鈥檚 contract with the agency.

鈥淔ulton does not create a right to religious exemptions from anti-discrimination laws that apply equally to everyone,鈥� said Alex Luchenitser, associate vice president and associate legal director at Americans United for Separation of Church and State. 鈥淪tate constitutional prohibitions and laws that prohibit use of public funds to support religious instruction generally do not have any exemptions and so should not be affected by Fulton.鈥�

The issue is relevant in , a case before a Maryland district court. The state excluded the religious school from a voucher program because the school鈥檚 handbook says it 鈥渟upports a biblical view of marriage鈥� and that 鈥淕od immutably bestows gender upon each person at birth as male or female.鈥� The school, which serves low-income students, said these statements don鈥檛 impact its admissions process, but the state still declined to admit it to the program.

The state is expected to submit a brief Friday requesting a decision in the case, with the plaintiff鈥檚 request expected in July.

Bindas, with the Institute for Justice, noted that the plaintiffs in the Maine case are arguing that families attending any religious school should be able to participate in a state鈥檚 school choice program. As it stands, Vermont could try to get around the appeals court鈥檚 decision by passing new legislation excluding religious schools because they teach students about doctrine or have a time for worship.

鈥淯sing public funds for religious instruction violates the religious freedom of taxpayers who are forced to subsidize faiths to which they do not subscribe,鈥� said Luchenitser, who has argued that the court should decline to hear the appeal in the Carson case.

Dave and Amy Carson kept their daughter Olivia at the Christian school she attends but that doesn鈥檛 participate in the tuition assistance program. The other plaintiffs in the case, Angela and Troy Nelson, wanted to send their children to a religious school, but instead sent their two children to a secular private school that accepts vouchers.

鈥淵ou either forgo the benefit,鈥� Bindas said, 鈥渙r you forgo the school that you think is best for your child.鈥�

In a broader sense, the Fulton decision shows the court continues to move toward a 鈥渕ore aggressive鈥� position in favor of religious rights, said Joshua Dunn, a political science professor at the University of Colorado-Colorado Springs.

鈥淭he reasoning of Espinoza 鈥� is hard to square with the 1st Circuit鈥檚 opinion,鈥� Dunn said, adding that if the court decides to hear the case, 鈥淢aine should be very worried.鈥�