Published March 12, 2025
On March 12, Ethics and Public Policy Center fellow Eric Kniffin filed a Supreme Court amicus brief in St. Isidore of Seville Catholic Virtual School v. Drummond. This case began after the Oklahoma Attorney General sued the Statewide Virtual Charter School Board for welcoming a partnership with St. Isidore. The AG’s lawsuit asked the Oklahoma Supreme Court to block this partnership solely because St. Isidore is faith-based.
The brief was filed on behalf of Charles L. Glenn, an education scholar who has frequently appeared as an expert witness in school funding cases and whose work has been cited by the Supreme Court. Drawing upon Glenn’s research, the brief demonstrates that from the founding through the turn of the twentieth century, it was normal for the federal and state governments to fund religious schools. The brief argues that the Supreme Court should take this history into account when interpreting the First Amendment. It also argues that Oklahoma’s actions against St. Isidore violate the school’s First Amendment rights under recent precedent.
As summarized in the brief:
From the Founding through the ratification of the Fourteenth Amendment, States, localities, and the federal government repeatedly funded … schools engaged in religious instruction[.] Some of those schools were affiliated with specific religious groups; others were the progenitors of modern-day public schools and professed no single creed. But in the early Republic, “there was no such thing as a secular school; all schools used curriculum that was imbued with religion.” …
Oklahoma played a prominent role in this history, given that it had 79 federally-funded Indian boarding schools, more than any other state. About half of these federally-funded schools were religious and fourteen were Catholic.
The governments that funded all of these religious schools saw no distinction between schools based on “religious status” or “religious use.” And the idea that the government could exclude schools from governmental grants out of a desire to avoid supporting religious education would have been heresy to early generations of Americans. In an era when many believed that the point of school was to teach the Christian faith, governments often cited schools’ religious character as a primary reason justifying funding. …
This historical record rebuts any claim that the First Amendment compels the government to discriminate against schools cut from the same cloth as those that dominated American education for the first half of our Nation’s history.
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s Administrative State Accountability Project.
