The Supreme Court on Thursday effectively ended a publicly funded Catholic charter school in Oklahoma, dividing 4-4.

The outcome keeps in place an Oklahoma court decision that invalidated a vote by a state charter school board to approve the St. Isidore of Seville Catholic Virtual School, which would have been the nation’s first religious charter school. But it leaves the issue unresolved nationally.

The one-sentence notice from the court provides an unsatisfying end to one of the term’s most closely watched cases. The Catholic Church in Oklahoma had wanted taxpayers to fund the online charter school “faithful to the teachings of Jesus Christ.” Opponents warned that allowing it would blur the separation between church and state, sap money from public schools and possibly upend the rules governing charter schools in almost every state.

Only eight of the nine justices took part in the case. Justice Amy Coney Barrett didn’t explain her absence, but she is good friends and used to teach with Notre Dame law professor Nicole Garnett, who has been an adviser to the school.

The issue could return to the high court in the future, with the prospect that all nine justices could participate. The court, following its custom, did not provide a breakdown of the votes. But during arguments last month, four conservative justices seemed likely to side with the school, while the three liberals seemed just as firmly on the other side.

That left Chief Justice John Roberts appearing to hold the key vote, and suggests he went with the liberals to make the outcome 4-4.  The case came to the court amid efforts, mainly in conservative-led states, to insert religion into public schools. Those include a challenged Louisiana requirement that the Ten Commandments be posted in classrooms and a mandate from Oklahoma’s state schools superintendent that the Bible be placed in public school classrooms.

St. Isidore, a K-12 online school, had planned to start classes for its first 200 enrollees last fall, with part of its mission to evangelize its students in the Catholic faith.

A key unresolved issue is whether the school is public or private. Charter schools are deemed public in Oklahoma and the other 45 states and the District of Columbia where they operate. North Dakota recently enacted legislation allowing for charter schools.

They are free and open to all, receive state funding, abide by antidiscrimination laws and submit to oversight of curriculum and testing. But they also are run by independent boards that are not part of local public school systems.

“Oklahoma parents and children are better off with more educational choices, not fewer. While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future,” said Jim Campbell, who argued the case at the high court on behalf of Oklahoma’s charter school board. Campbell is the chief legal counsel at Alliance Defending Freedom, a conservative legal organization that appears often at the court in cases on high-profile social issues.

On the other side, the American Civil Liberties Union and Americans United for Separation of Church and State, which are among groups representing parents and other opponents of the school in a separate lawsuit, applauded the outcome for preserving public education.

“The very idea of a religious public school is a constitutional oxymoron. The Supreme Court’s ruling affirms that a religious school can’t be a public school and a public school can’t be religious,” said Daniel Mach, director of the ACLU’s Program on Freedom of Religion and Belief.

Oklahoma officials also offered differing views.

Republican Gov. Kevin Stitt and state School Superintendent Ryan Walters said the fight is far from over. “There will be another case just like this one and Justice Barrett will break the tie,” Stitt said.
Attorney General Gentner Drummond, also a Republican, sued to stop the school. He called the 4-4 vote “a resounding victory for religious liberty” that also will ensure that “Oklahoma taxpayers will not be forced to fund radical Islamic schools, while protecting the religious rights of families to choose any school they wish for their children.”

During arguments, Justice Samuel Alito said, “We have statement after statement by the attorney general that reeks of hostility toward Islam.”