But the reprieve may be short-lived. Both supporters and opponents recognize the constitutional debate over whether publicly-funded charter schools can explicitly promote religion isn鈥檛 settled.

鈥淚t鈥檚 obviously disappointing,鈥� said Nicole Garnett, a Notre Dame University law professor. But the decision 鈥� a 4-4 tie 鈥� doesn鈥檛 set a precedent, she said. 鈥淭he issue remains alive and will undoubtedly resurface soon.鈥�

Garnett鈥檚 novel legal argument in favor of charters being private inspired Catholic church leaders in Oklahoma to apply for a charter in 2023. But ironically, her long and close friendship with Justice Amy Coney Barrett is the likely reason for the split decision. 

As 社区黑料 reported in March, Garnett and Barrett met as Supreme Court law clerks in 1998, both taught at Notre Dame and raised their children in the same neighborhood. Josh Blackman, an associate professor at the South Texas College of Law, and a friend of Garnett鈥檚, predicted at the time that the case 鈥渕ight go to a 4-4 decision.鈥�

鈥淚 feel bad for Nicole,鈥� he said. 鈥淭his is her life鈥檚 work.鈥�

Barrett recused herself from the case, and in a simple , the justices said the state supreme court鈥檚 ruling last year to deny a charter to St. Isidore of Seville Catholic Virtual School stands 鈥� for now.

鈥淚t鈥檚 a day of celebration and relief,鈥� said Robert Franklin, a former member of the Oklahoma virtual charter board who voted against the school鈥檚 application. 鈥淚 am not so naive [to think] that the matter doesn鈥檛 find breath again at a later date, but for today, it鈥檚 a day to exhale.鈥�

While the opinion doesn鈥檛 say how the justices decided, experts largely suspect that Chief Justice John Roberts played a central role and sided with the three liberals on the court. Early in April鈥檚 oral arguments, he appeared skeptical of the school鈥檚 assertion that Oklahoma didn鈥檛 create or control the school.

The conservative-leaning court, which has increasingly ruled in favor of expanding religious freedom, agreed to hear the case just four days after President Donald Trump took office. Roberts is the author of the three most recent opinions that Garnett and other scholars consider to be a 鈥渢rilogy鈥� 鈥� a over whether a religious school could participate in a state program offering playground resurfacing materials and two cases involving state funds for religious education, in and . But Roberts is also known for restraint. The potential disruption to nearly 8,000 schools nationwide may have proved to be too much for the chief justice, said Robert Tuttle, a professor of law and religion at the George Washington University Law School.

The case 鈥渟eemed to many people like a vehicle for expanding the idea of school choice as broadly as possible,鈥� Tuttle said. But he speculated that the court 鈥� most likely Roberts 鈥� 鈥渞ecognized the concerns 鈥� that this would have the possibility of killing charter schools.鈥�

He agrees with Garnett that a similar case could rise to the court, but for now, the matter remains unsettled. Even in cases of a tie, justices can issue their own opinions, something they did not do in this case.

鈥淚f it were settled, then you would have opinions,鈥� he said. But the case presented multiple 鈥渞ed flags under the Establishment clause.鈥� Thursday鈥檚 ruling, he said, means that when it comes to faith-based charter schools, the line between religious freedom and government entanglement is unclear. 鈥淲hat we know is that the Supreme Court doesn’t know it either.鈥�

The decision leaves many Catholic families in Oklahoma, especially those in rural areas, without a publicly funded faith-based option. In a statement, Archbishop of Oklahoma City Paul Coakley and David A. Konderla, the bishop of Tulsa, said that they are 鈥渆xploring other options for offering a virtual Catholic education to all persons in the state.鈥�

Days before the oral arguments, Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, warned the court and the Trump administration that declaring charter schools to be private would threaten funding for students since state laws define them as public. 

Others argued that a decision in favor of religious charter schools would compromise civil rights protections since many faith-based schools deny admission or services to LGBTQ students or kids with disabilities.

鈥淔amilies choose public charter schools because they provide innovative, student-centered learning environments tailored to students鈥� unique needs and because they are accountable to families and taxpayers,鈥� Coleman said in a statement Thursday. 鈥淭hat鈥檚 what makes them special, and that鈥檚 what we鈥檙e here to protect.鈥� 

The administration, as part of its school choice agenda, has heavily promoted charter schools since January by removing Biden-era regulations and increasing funding. But some experts say states might tweak charter school laws to clarify that charters are public despite being operated by private organizations.

鈥淭he fact that it was as close as it was is a signal. This is a chance to make some changes because it’s going to come up again,鈥� said Preston Green, an education and law professor at the University of Connecticut. He has recommended that states amend laws to clarify that board members for charter schools are public officials.

Green recognizes that Thursday鈥檚 outcome may have been a fluke. A recusal such as Barrett鈥檚 is unlikely to happen again. 鈥淭here’s just no guarantee that Coney Barrett is going to side with the liberals. There’s no guarantee that Roberts 鈥� or whoever it was 鈥� would come out that way the second time around.鈥澛�

Such a ruling would be bad for the country and deeply disruptive. It could upend the charter school sector, raising questions about the constitutionality of the federal charter school law and the laws in 47 states, all of which require charters to be nonsectarian. It could lead to blue states cutting back on charter schools and red states seeing a flood of religious charters open up, which would further balkanize an already divided country. 

Is there any hope? The best outcome would be if one of the conservative justices 鈥� most likely Chief Justice John Roberts 鈥� ended up siding with the liberal justices and rejecting a requirement that authorizers must permit religious charter schools. The second-best outcome would be if policymakers took creative steps (as I outline below) to comply with an adverse Supreme Court ruling while preserving social cohesion and retaining for charter schools the flexibility they need to flourish.

I have a modest hope that Roberts鈥檚 vote may be in play. If he votes with the court鈥檚 three liberal justices, a 4-4 decision would let stand the Oklahoma Supreme Court鈥檚 decision opposing religious charters. (Justice Amy Coney Barrett is recused in the case.)  

In the oral arguments, the justices on the central question in the case: Are charters public or private? If they are public, then the Establishment Clause of the First Amendment prohibits them from being religious. If they are private, by contrast, the court鈥檚 interpretations of the First Amendment鈥檚 Free Exercise Clause that government cannot discriminate against religious schools would apply. 

Roberts asked tough questions of both sides, but the most hopeful moment came when he noted that the state has 鈥渁 much more comprehensive involvement鈥� in charter schools than in private schools, which could tilt his thinking against religious charters.

Greg Garre, who served as solicitor general under former President George W. Bush, made a powerful case that charter schools are public. He noted that private schools differ from charter schools in eight respects: 

• “Private schools can open without any state approval.”
  
• 鈥淭here are no requirements or supervision of curriculum for private schools.鈥�
  
• Private schools “can charge tuition.”
  
• Private schools 鈥渃an restrict admissions.鈥�
  
• Private schools are 鈥渘ot subject to general state assessment tests.鈥�
  
• Private schools are 鈥渘ot subject to nearly the reporting requirements or oversight as public schools鈥�
  
• Private schools 鈥渘ot subject to state rules regarding student discipline, civil rights [and] health鈥�
  
• “There鈥檚 no process for closing鈥� private schools 鈥渟hort of consumer fraud.鈥�

If Roberts nevertheless decides, along with other conservatives, that charter schools are private schools, and states are compelled to authorize religious charters, that would set off a number of consequences.

First, blue states are likely to rebel. As Justice Neil Gorsuch noted, some states may begin 鈥渋mposing more requirements on charter schools,鈥� essentially making them more 鈥減ublic.鈥� For a sector that thrives on independence, this could constitute a 鈥渂oomerang effect.鈥�

Second, red states are likely to see a number of religious private schools convert to charter status. As Justice Elena Kagan noted, 鈥淭here鈥檚 a big incentive to operating charter schools, since everything is funded for you.鈥� She expected to see 鈥渁 line out the door鈥� of applicants.

Third, there is likely to be more litigation. As the justices asked in the oral argument: If charters are deemed private schools, then does that mean a conservative Christian charter school could, as a matter of religious liberty, bar the admissions of Jewish, Muslim and gay students? Could the same school discriminate against gay or non-Christian faculty members? Could it reject state standards requiring that it teach evolution?  

I found this all very depressing, but there was one compelling moment in the oral argument that gave me some hope and sparked an idea about how state charter school boards could minimize the damage of a negative Supreme Court decision: focus on the question of a school鈥檚 mission.

At one point during the argument, Justices Sonia Sotomayor and Ketanji Brown Jackson offered a hypothetical question. If the government wanted to commission a mural and a religious painter wanted to include religious images, could the government reject that approach? Yes, said James Campbell, the attorney for the charter school board, because in that case, 鈥渢he government is trying to speak its own message on its own buildings.鈥� He claimed that the charter school law in Oklahoma, by contrast, gives 鈥渂road autonomy to the schools to come up with their own mission.鈥� 

Under that logic, what if charter school laws were amended to say that applicant schools were free to identify a number of missions, but that they had to identify as their ultimate mission teaching the liberal democratic values that bind together Americans of all backgrounds? That鈥檚 already a central premise the constitutions and laws of many states. As Albert Shanker, who first brought the idea of public charter schools to the national stage, argued, the primary mission of public education is to teach these values, which is bound up in “.”

Teaching liberal democratic values is probably consistent with the approach of most religious charter schools, but few are likely to agree that this is their most important mission.聽The Oklahoma school at the center of the Supreme Court case, St. Isadore of Seville Catholic Virtual School, says its 鈥渦ltimate goal鈥� is 鈥渆ternal salvation.鈥� For many religious leaders, saying that promoting liberal democracy is their school鈥檚 primary mission would constitute blasphemy. When former President Joe Biden called the ideals in America’s founding documents 鈥渟acred,鈥� a Catholic priest objected in the pages of the Wall Street Journal, saying, “.”

The test for charter school applicants wouldn鈥檛 be religious; it would be one of mission. Not every religious school would fail the test, and not every secular school would pass it. If the government is entitled to 鈥渟peak its own message on its own building,鈥� why can鈥檛 a state ask the schools it funds to advance as their central message the preservation of liberal democracy?