The Supreme Court held oral arguments this morning in a case that all people concerned with religious liberty and school choice care very deeply about. It’s called Oklahoma Charter School Board V. Drummond, and could be the final nail in the coffin of public officials desperate to keep religious discrimination alive and well.
The case involves what would have been a 200-student Catholic institution, St. Isidore of Seville Catholic Virtual School, who applied for state and federal funding to become a charter academy. The Oklahoma Supreme Court intervened, denying the previous approval as unconstitutional on the grounds of the separation of church and state.
Cert was accepted by the Supreme Court, and in the wake of a few other similar cases – 2021’s Fulton V. Philadelphia, 2017’s Trinity Lutheran V. Comer, 2022’s Carson V. Makin, and 2020’s Espinoza V. Montana Department of Revenue, especially with the 6-3 conservative makeup of the Court, this seems on the surface to be a case of discrimination on the basis of religion, which you cannot do. It’s clearly unconstitutional.
The Attorney General of Oklahoma, a Republican named Gentner Drummond, who is a candidate for governor in 2026, is hostile to religious entities being part of the public education system. His political career in Oklahoma, even though about as red a state as it gets, is probably over after this case.
Why this case is very interesting, though, is because Amy Coney Barrett recused herself. She did not give a reason why, but it’s pretty obvious when one does a little research. One of her dearest friends in the world is a woman named Nicole Stelle Garnett, who clerked for Clarence Thomas at the same time Barrett clerked for Sam Alito. They’ve been friends ever since. Garnett went on to be a professor at Notre Dame, and was an early legal advisor for St. Isidore school. Barrett likely didn’t want the conflict of interest to taint the decision.
So with an 8-seat Court hearing argument, it gets interesting, and the game of reading tea leaves in the questioning of the justices takes on another level.
The key exchanges all came when Gregory Garre, the attorney representing Attorney General Drummond, tried to make the claim that charter schools were a creature and creation of the state all on their own, and no other case law applied. It’s a thin argument, and Justices Roberts, Kavanaugh, Gorsuch, Alito, and Thomas did not appear to find it very compelling. Here’s a few examples.
Chief Justice Roberts recognizes Garre’s biggest problem is in having to argue how this case shouldn’t fall under the Fulton precedent.
The answer was pretty muddy and wandering. The best case Drummond and his legal team can make to justify discrimination against Catholics from participating into charter schools is because Jews and Muslims would be allowed at some point, too. Justice Kavanaugh noticed that Garre didn’t directly answer the Chief’s premise and redirected.
Garre tried to carve out educational institutes from any other business or enterprise in society as the reason why you can discriminate on religion. Chief Justice Roberts wasn’t buying it.
The reason he doesn’t understand Garre’s argument is because it doesn’t make a lick of sense.
The boom moment came from Brett Kavanaugh, who called the defense what it is – rank discrimination.
I get the folly of reading too much into questions by justices, but it seems pretty hard to imagine Kavanaugh being in the maybe camp.
Neil Gorsuch had his turn.
There really isn’t a good legal test.
Justice Alito made his presence known as well.
Clarence Thomas did weigh in at times throughout the entire oral argument, and has never missed on a religious liberties case. He doesn’t seem to indicate he’ll throw a spoke on this one. I count at least a 5-3 decision, with the possibility of Elena Kagan making it 6-2.
Even though in Oklahoma politics, this case is essentially Republican on Republican crime, Drummond is learning fairly quickly that the party’s tent has edges, and he’s out in the cold here. Current Governor Kevin Stitt was on Fox News to preview how important a case this is.
Oklahoma’s State superintendent of schools, Ryan Walters, piled on a little later.
AG Drummond is siding with the left, pushing anti-Christian and anti-Trump agendas that go against Oklahoma values.
Oklahoma went 77 out of 77 counties for President Trump. That wasn’t a coincidence, it was a mandate. Oklahomans voted for religious liberty and school choice. pic.twitter.com/IiadSgElg1
— Ryan Walters (@RyanWalters_) April 30, 2025
Worst case scenario is a 4-4 tie, but I’m not seeing it. You simply cannot offer public accreditation as a charter school to everybody except a school run by a religious group. You just can’t, and Kavanaugh’s counter argument hung in the air as the gotcha moment.
It’s actually ridiculous a case like this had to come before the Court. Let’s hope that the majority decision is sweeping enough to end more discrimination cases like it in the future.
