Last week, the Supreme Court punted in Drummond v. Statewide Charter School Board, the case challenging Oklahoma’s exclusion of religious groups from a charter school program open to other private groups. Rather than write an opinion addressing the merits, the Court issued a one-page order stating only that the lower court’s ruling, which barred an applicant from operating a Catholic charter school, was “affirmed by an equally divided court.” (Justice Amy Coney Barrett’s recusal left the Court with an even number of justices to consider the case.)
The order did not identify which four justices voted to uphold the religious-based exclusion of the applicant; nor did any of those four try to explain how such treatment could be squared with the U.S. Constitution. This disposition warrants three immediate observations.
First, the Court’s 4–4 tie means that the case has zero effect on federal law. It has long been understood that a ruling “affirmed by an equally divided court” is not entitled to precedential weight. In 1868, the Supreme Court remarked that a tie “prevents the decision from becoming an authority for other cases of like character.” But that didn’t stop Oklahoma’s attorney general from tweeting that “the Supreme Court has ruled in favor of my position that we should not allow taxpayer funding of radical Islamic schools here in Oklahoma.” Of course, the Supreme Court did no such thing, and the attorney general should know better. In truth, the Court simply failed to reach an opinion on any of the issues in the case.
Second, the exclusion of religious applicants from charter school programs open to other private groups raises profound constitutional questions. The Supreme Court has repeatedly held that the exclusion of religious observers from otherwise available government programs violates the free exercise clause. The only possible basis offered by the Oklahoma Supreme Court for disregarding that unbroken line of authority was the claim that a charter school somehow is an arm of the state. But that claim is easily defeated when a charter school operated under contract with the state is privately created and controlled, as the school at issue in Drummond clearly was. It is therefore disappointing, though not surprising, that none of the four justices who voted to uphold Oklahoma’s categorical exclusion of religious groups provided any rationale for what Justice Brett Kavanaugh at argument described as “rank discrimination.”
Third, these constitutional issues remain to be decided another day. Because the Supreme Court did not approve, much less require, discrimination based on religion in charter school programs, the states remain free to structure their programs to treat religious applicants the same way they treat everyone else. Programs in some of the twelve states that supported our challenge to Oklahoma’s religious discrimination would seem a good place to start. Other states might also be interested. Opening the door to religious charter schools would promote educational freedom and expand the choices available to parents and families. That’s a good thing for everyone. It would also ensure that religious groups aren’t treated as second class in the operation of governmental programs.
These issues undoubtedly will be presented again to the Supreme Court—next time, hopefully, in a case where all nine justices participate. And next time, hopefully, in a case where the justices write an opinion telling us their views on these important constitutional questions.