A first-in-the-nation move to set up a religious school as a public school paid for with taxpayer funds failed in the Supreme Court Thursday on a 4-to-4 vote.  The tie resulted from Justice Amy Coney Barrett’s personal but unexplained choice to take no part in the case.

The case grew out of a bold attempt by Roman Catholic leaders in Oklahoma to set up a charter school as a public school to qualify for direct public financing of its entire operation, including the inclusion of Catholic doctrine in all of its teaching and activities.

The dispute was widely viewed as one of the Court’s most important tests of the Constitution’s tradition of separating religion from government.  It also was seen by advocates of public education as a dire threat to the future of public school financing across the nation.

In the end, however, the ruling – at least for now — will have no impact beyond the state of Oklahoma, and beyond the fate of this one parochial school, St. Isidore of Seville Catholic School (named for a 7^th Century scholar and author of an encyclopedia used as a textbook for nine centuries).  The school was denied public status and was barred from public subsidies under a 6-to-2 ruling last year by the Oklahoma Supreme Court.  The ruling was based on religion clauses in both the Oklahoma state constitution and the U.S. Constitution.

The Catholic sponsors of the school and the state charter school board took two appeals to the Supreme Court.  The case was considered at a hearing of the Justices on April 30, leading to the Thursday decision.  Justice Barrett has been out of the case since the Court granted review of the appeals in January.

In a tradition at the Supreme Court that goes back to a decision in 1793, reinforced by a ruling by the Court in 1825, an equal division among the Justices in a final decision means the following:

• It has the actual effect of upholding the lower court decision that is being reviewed by the Court.
• It does so without any written opinions explaining views in favor of or opposed to the lower court ruling. (Thursday’s ruling said only this: “The judgment is affirmed by an equally divided Court.” It then noted that Justice Barrett “took no part in the consideration or decision of these cases.”)
• The ruling controls only the specific case being reviewed, and thus does not set a precedent that will control any other case like it or arising in the future. (If the sponsors want to have their charter school in Oklahoma, it cannot be a public entity and will get no public education funds.)
• The Justice whose non-participation results in the equal split of those taking part almost always offers no explanation for doing so.

The sponsors of St. Isidore itself could formally ask the Court to reconsider, but under the Court’s rules, that can only be done at the request of one of the Justices who supported the lower court and with a majority of five agreeing to do so.  That almost never happens after a 4-to-4 split.

If a religious entity attempts to set up a school of the kind that St. Isidore was intended to be, but does so in another state, that could lead to a new case that could ultimately reach the Supreme Court.  There are reasons to speculate that, if that is done, Justice Barrett might be willing to take part in such a new test case because of speculation suggesting that her withdrawal likely was based only on St. Isidore’s plan and its history.

This is what the speculation has been:

• As a former professor at Notre Dame Law School, Barrett appears to have had a role in that school’s Religious Liberty Clinic, which is acting as St. Isidore’s legal advocate in one of the two cases.
• She is close friends to a current adviser to the clinic, Notre Dame law professor Nicole Steele Garnett, who has written extensively on the financial problems of Catholic schools, helped devise funding strategy for St. Isidore, and is a leader of the Manhattan Institute, a conservative advocacy organization that filed its own brief in the Court in support of St. Isidore. (Barrett and Garnett became close friends when they were serving as law clerks at the Supreme Court; Barrett is a god mother to one of Garnett’s children.)

It was Barrett’s own choice to withdraw from the case, although she may have consulted her colleagues.  Nothing in Court practice or tradition required her to explain.

In the wake of the Court’s brief ruling, there is now considerable speculation that the four Justices voting to uphold the Oklahoma state court ruling were the conservative Chief Justice, John G. Roberts, Jr., and the Court’s three liberal Justices, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.  Similarly, speculation suggests that those who would have overturned the state court ruling were conservative Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.

Although Roberts has been the author of some of the Court’s broadest recent rulings in favor of public benefits for parochial schools, he may have hesitated to go along with the more sweeping experiment being attempted with St. Isidore, making virtually its entire educational program a state activity.  (The Oklahoma attorney general, who fought the creation of St. Isidore as a public school, Gentner Drummond, has described himself as a Christian believer who fears that government involvement in religion will be a threat to religious liberty.)

The Court was considering two issues as decided by the Oklahoma Supreme Court: first, was St. Isidore going to be a public institution bound by the state constitution’s flat ban on public funding of religious institutions (the state court said Yes) and, second, does the denial of public funds to St. Isidore because it is affiliated with a religious denomination violate the proposed school’s First Amendment right of free expression (the state court said No).

The eight Justices who took part in the ruling could have been on opposite sides of both of those questions, or either one of them.

Because Roman Catholic leaders in many states are actively seeking new ways to finance their schools, it seems entirely likely that the Oklahoma experiment will be attempted elsewhere.  In a significant report two years ago for the Manhattan Institute on ways to improve and expand religious education, Professor Garnett said there were at that time 65 programs across the nation providing school choice programs for parents – including parochial schools – serving some 700,000 students.  Her study recommended strategies for expanding the reach of such programs.