Conservative organizations endeavoring to incorporate religious educational institutions into publicly funded charter school initiatives are anticipated to swiftly bring a new case before the U.S. Supreme Court. This expectation arises after the Supreme Court reached a deadlock in a recent Oklahoma case. The tie, a 4-4 split, resulted in the continuation of an Oklahoma Supreme Court decision, which prevented a Catholic institution from becoming the first religious charter school in the nation.
The deadlock was due to Justice Amy Coney Barrett’s decision to recuse herself, likely influenced by her association with Notre Dame law professor Nicole Stelle Garnett. Garnett served as an adviser to the school involved in the case, and Barrett, a graduate of Notre Dame Law School, had been on the institution’s faculty before her appointment to the U.S. Court of Appeals for the Seventh Circuit by former President Donald Trump in 2017.
With no current cases on the docket that would allow the justices to reassess the contentious matter of church-state separation in this context, advocates are reportedly preparing for a new opportunity. Hiram Sasser, Executive General Counsel for First Liberty Institute, noted the organization’s efforts to expedite the process, with hopes to bring a case before the Court by the next term. First Liberty Institute has already demonstrated its support for the religious school by submitting an amicus brief during the Oklahoma proceedings.
In the case of Oklahoma Statewide Charter School Board v. Drummond, the Court did not elaborate on the justices’ individual votes, and the decision to uphold the prior ruling does not establish a formal precedent. Neal McCluskey from the Cato Institute surmises that Barrett’s absence was influential, suggesting the likelihood of the case’s return to the Court. Historical precedent exists for such a reappearance, as illustrated by the Friedrichs v. California Teachers Association case, which resurfaced after an initial split and led to a decisive 5-4 ruling in Janus v. AFSCME. This past instance fuels speculation that Barrett’s participation in a future hearing could tilt the decision 5-4 in favor of the religious charter school.
Full details about the case can be accessed on Bloomberg Law.