Surely it is usually better to win than not to. But we rather think all of the hand-wringing over last week’s U.S. Supreme Court split, 4-4 decision (Justice Amy Coney Barrett did not participate), letting Oklahoma State Supreme Court’s ban on religious charter schools stand in Oklahoma is misplaced. The case was sui generis and the ruling does not, as many have erroneously opined, speak to the overall issue of publicly funded tuition assistance for parochial school parents.
The Supreme Court has previously held that if states offer tuition assistance for private schools instead of public, they must also allow parents to choose religious schools, with funding directed through individual parental choice. However, the case that was just entertained in Court raised the additional issue of whether Oklahoma, which provides funds directly to non-religious charter schools, must – or even can – also provide tuition funding directly to religious charter schools, despite the Establishment of Religion Clause of the First Amendment.
Put another way, charter schools are typically considered public schools, which are nevertheless authorized to adjust standard public school curricula and other school programs. And in those earlier cases in which the Supreme Court programs approved certain funding, the schools were private.
However, The Oklahoma charter school, despite being a public school, was to be operated by the Archdiocese of Oklahoma City, which gears its curriculum to the teaching of the Catholic faith. So, arguably, any public funding for the Oklahoma charter school would put the government in the religious education business.
Thus, it is doubtful that the decision will have any significant impact on the issue of the constitutionality of public tuition assistance to yeshiva parents.
In addition, in Supreme Court jurisprudence, a 4-4 split decision neither constitutes approval nor disapproval of the particular lower court decision being reviewed, and is not deemed as reaching the merits of the issue involved at all events. Nor does it set any national precedent. Therefore, the notion that this case constitutes a setback in the effort to secure equity for yeshiva parents is not justified.
This is all the more so in light of a 2021 study cited by Adam Liptak in his New York Times report on the Oklahoma case. The study, conducted by Lee Epstein of Washington University in St. Louis and Eric Posner of the University of Chicago, found that the Court, presided over by current Chief Justice John Roberts since 2005, ruled in favor of religious people and groups over 83 percent of the time, compared to about 50 percent of the time for other courts since 1953.
And there is no indication that the Court is moving towards radically altering that tilt.
