The Supreme Court’s Republican majority certainly seems eager to make taxpayers fund religious education.

Over the past few decades, the Court has slowly expanded the ability of religious schools to access public money. Most recently, in Carson v. Makin (2022), the Court held that states that provide tuition vouchers that pay for private education must allow those vouchers to be spent on religious private schools.

Thus far, however, the Court has tolerated the separation of church and state in public education. That separation could be eroded in a case the Court will hear oral arguments for on the last day of April, however.

That case, Oklahoma Statewide Charter School Board v. Drummond concerns a proposed Catholic school — St. Isidore of Seville Catholic Virtual School — which seeks to become the first religious public charter school in the country, dealing a severe blow to separation of church and state in public schooling in the process.

Traditional public schools are state-owned institutions that are operated by the state. Private schools are owned and operated by someone other than the government. Charter schools are a kind of hybrid institution that are created by states and have always been understood to be part of a state’s public school system, but that are often operated by third parties under strict state control.

As Oklahoma argues in its brief, both a 1994 federal law and the laws of 46 states not only classify charter schools as public institutions, they also require them to be nonreligious.

St. Isidore rejects this classification, and it challenges a state constitutional provision forbidding the state from spending public money “for the use, benefit, or support of any sect, church, denomination, or system of religion.” St. Isidore and key officials within Oklahoma ask the Court to bypass this constitutional prohibition by reclassifying the state’s charter schools as private entities.

Because Carson already established that states must fund religious schools if they offer subsidies to private educational institutions, the Oklahoma case turns on whether charter schools count as public institutions, as the state’s law classifies them, or whether they are private entities that the state contracts with to educate some students. The former would maintain the prohibition against religious charter schools, and the latter stance would destroy it.

A key precedent in this case is Lebron v. National Railroad Passenger Corporation (1995), in which the Supreme Court warned that “Government-created and -controlled” entities must be classified as part of the government, otherwise the Court’s notorious pro-segregation decision in Plessy v. Ferguson (1896) “can be resurrected by the simple device of having the State of Louisiana operate segregated trains through a state-owned Amtrak.”

Given this precedent, if government-created and -controlled entities are public, then Oklahoma’s charter schools should count as public schools. Under Oklahoma law, the state’s charter school board “shall have the sole authority to sponsor statewide virtual charter schools in this state,” and the state exercises considerable control over charter schools.

But precedent has about as much influence over this Supreme Court’s religion decisions as the works of Tchaikovsky have over Egyptian hip-hop. Just one month after Justice Amy Coney Barrett’s confirmation gave Republicans a supermajority on the Court, Barrett joined four of her Republican colleagues in

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