The Establishment Clause and More: Religious Charter Schools and Religion in the Classroom
The Establishment Clause and More: Religious Charter Schools and Religion in the Classroom
Jun 5, 2025
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On May 22, 2025, a deadlocked Supreme Court blocked the creation of religious charter schools in Oklahoma Statewide Charter School Board and St. Isidore v. Drummond. This decision leaves in place the Oklahoma Supreme Court ruling that declared authorizing religious charter schools violated the constitutional separation of church and state. The decision was made on a 4-4 vote, with Justice Amy Coney Barrett recusing herself from the case. Justice Barrett has strong ties with the Notre Dame Law School and Notre Dame’s religious liberty clinic represents St. Isidore of Seville Catholic Virtual School, one of the charter schools at issue.
The National Alliance of Public Charter Schools, along with 74 other organizations, filed an amicus brief urging the Court to uphold the Oklahoma Supreme Court’s ruling blocking religious charter schools. Oral arguments for the case were held on April 30, 2025. During oral arguments, the justices considered and wrestled with the tensions between religious freedom, public funding, and state action. The attorney for the charter schools argued that St. Isidore is a private religious non-profit due to its creation and control by private actors. The Attorney General for Oklahoma argued that St. Isidore is seeking access to be a part of Oklahoma’s public charter school program, but with an exemption to the non-discrimination requirements that apply to other charter schools and distinguish public schools from private schools. Justices Neil Gorsuch and Samuel Alito emphasized potential discrimination concerns with regard to the exclusion of religious charter schools, while Justices Sonia Sotomayor, Elena Kagan, and Kentanji Brown Jackson raised alarm with the concept of supporting government sponsored religion through public charter school authorization.
While this ruling leaves in place the Oklahoma Supreme Court decision, as there was no majority and no written decision, this case does not create a nationwide precedent. What does this mean? Without a national precedent, religious groups may continue to bring forward cases regarding whether the First Amendment’s Free Exercise Clause or the Establishment Clause allow a state to exclude religious schools from their charter school programs.
However, Oklahoma and St. Isidore v. Drummond isn’t the only Establishment Clause case worth considering. Recently on May 5, 2025, the Third Circuit analyzed a different Establishment Clause issue in Hilsenrath v. School District of the Chathams. In Hilsenrath, a parent sued the board of education, claiming that inclusion of instructional videos about Islam in her son’s seventh-grade World Cultures and Geography class violated the Establishment Clause of the First Amendment. The seventh-grade class covered various world regions and their predominant religions, including Christianity, Buddhism, Hinduism and Islam. The parent in this case challenged a specific lesson that included a presentation and two YouTube videos, “Intro to Islam” and “The 5 Pillars of Islam,” which she argued to be “coerc[ive]” and “proselytizing;” or at least that the curriculum in the class favored Islam over other faiths.
The United States District Court for the District of New Jersey found in favor of the board of education, finding no Establishment Clause violation. The court applied the Lemon test and later, following a remand due to the Supreme Court’s decision in Kennedy v. Bremerton School District, applied a historical analysis. The District Court concluded that the curriculum did not resemble any traditional hallmarks of religious establishment, such as coercion or preferential treatment of one religion over others. The Court of Appeals for the Third Circuit affirmed the District Court’s judgment and found that the curriculum did not constitute proselytization or coercion, as the videos were part of a secular educational program covering multiple religions, and there existed no evidence of favoritism towards Islam, as the curriculum included teachings on various world religions. Overall, the Third Circuit emphasized that the curriculum did not bear any hallmarks of religious establishment and upheld the District Court’s decision. While not precedential in Illinois, this case signals a trend in legal issues being raised concerning the subject of religion and schools.
What’s next? Issues of the Establishment Clause and religion are not leaving the docket anytime soon. Notably, an important case concerning parental rights to the free exercise of religion and the authority of school districts over curriculum content is currently under review by the U.S. Supreme Court in Mahmoud v. Taylor. We will be monitoring the outcome of this litigation. Please contact your Robbins Schwartz attorney with questions.
