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The proposal was the most audacious Robert Franklin had seen during his four decades in education: The Catholic Archdiocese of Oklahoma City wanted to create the nation's first religious, taxpayer-funded public charter school.
Franklin, who chaired a state board responsible for approving new charter schools, saw the idea as patently illegal and an obvious assault on the separation of church and state. Oklahoma would be directly sponsoring - and paying for - a school that promises to inject religion into every aspect of its teaching and expect students "to adhere" to its beliefs.
He was sure the idea would quickly die.
But this was a proposal aimed well beyond one tiny charter school for rural Oklahoma. It was part of a careful legal and political strategy aimed at affecting public and parochial education coast to coast.
During a break in a meeting of the charter school board where the proposal was discussed, Franklin approached a church official who had helped craft the idea.
"I feel like this is so much bigger than what this board is all about," Franklin told him. "Perhaps I'm just a pawn in this process."
"You are," the official replied, according to Franklin. "We're going forward. We will go to the Supreme Court if we have to."
Two years later, his prediction has come to pass. The nation's highest court will hear oral arguments Wednesday over the constitutionality of St. Isidore of Seville Catholic Virtual School - a blockbuster case that could remake bedrock constitutional principles.
The case was born in Oklahoma but propelled forward by a religious liberty clinic at the University of Notre Dame in Indiana. The clinic is one of the most connected legal institutions in the country, with extensive financial and personal ties to members of the Supreme Court and a mission to break down barriers between church and state.
A Notre Dame law professor had put forward the idea that denying government funding for parochial charter schools would amount to anti-religious discrimination. She based her position on recent decisions by Chief Justice John G. Roberts Jr. and the rest of the court's conservative majority that boosted the role of religion in public life.
A high court victory for St. Isidore, based on the law professor's premise, would represent a major expansion of the use of taxpayer money for religious education - and the clinic's biggest win to date.
While school vouchers in some states help pay for private religious schools, charter schools are full-fledged public schools. They get the same funding as traditional public schools and must abide by the same nondiscrimination rules. St. Isidore's would not only teach religion, but it would also make faith-based hiring and curriculum decisions that have been strictly off-limits for public institutions.
Justin Driver, a professor at Yale Law School and an expert on education law, said it is "difficult to overstate the magnitude of the case for our constitutional order."
"The goal posts in this constitutional area have moved incredibly far, incredibly fast," Driver said. "Even a decade ago, the notion that states would be required to recognize religious charter schools was not at all a mainstream view. … There is a certain sense of constitutional whiplash here."
• Creating the blueprint
A year before the St. Isidore proposal came before Franklin's board, Notre Dame law professor Nicole Garnett laid out a blueprint for making it a reality.
Garnett, a former law clerk to Justice Clarence Thomas, had worked on school choice issues since the 1990s and was a prominent voice in the conservative legal movement. In a 2020 paper, she argued that the high court had cracked the door to radically remaking American education by ruling in a Montana case that states may not exclude religious schools when offering subsidies or funding for private education. Garnett made a provocative argument: The court's reasoning would ultimately require states to allow public charter schools that are religious in nature.
"If religious charter schools are constitutionally permissible, then justice - as well as the Constitution - demands that they must be permitted," Garnett wrote.
That idea was a legal outlier. The 45 states that allow charter schools, plus the District of Columbia, all require them to be nonsectarian. Decisions by the Supreme Court since the 1960s had erected a high wall between religion and schools.
Garnett herself had doubted the constitutionality of direct public funding for religious charter schools as recently as 2014, writing that "all state laws make clear that charter schools are privately operated public schools," so a religious public charter school could not receive government money without changes to statutes.
But in education and other spheres, the Roberts court has bolstered religious liberty in rulings that have become one of its most significant legacies.
First, in 2017, the court found that Missouri could not exclude a religious preschool from a playground resurfacing program. Then came the 2020 Montana case requiring states that aid private schools to include some faith-based ones in that funding. In 2022, the court would require Maine to let parents use vouchers for religious schools, and it would let a high school football coach pray on the school field.
In a separate case this term, the court appears likely to side with a group of parents who want to pull their children from public school lessons with LGBTQ+-themed books for religious reasons.
Each of the recent rulings relied on an expansive view of the First Amendment's free exercise clause, which prohibits the government from interfering with the right of individuals to practice religion. Critics argue the rulings have dangerously diminished the First Amendment's counterpoint: the establishment clause, which prohibits the government from establishing an official religion or favoring certain faiths.
Garnett's paper said an organization seeking to open a religious charter school might challenge state rules on the same free exercise grounds that had been so successful in the earlier cases. In contrast to her 2014 position, Garnett asserted religious public charter schools should be considered private entities so they could receive public money.
"It is likely that lawsuits challenging charter school laws will be filed in some states in the near future," she wrote.
Officials with the Archdiocese of Oklahoma City also had been following the high court's jurisprudence. Its general counsel knew Garnett and her scholarship. Catholic school officials had concluded during the pandemic that online learning could be successful for some children.
The combination sparked the idea of creating an online-only religious public charter school to reach rural Catholics who did not have access to brick-and-mortar parochial schools, as well as students with special needs. In 2021, the archdiocese asked Garnett for help.
Garnett said the case would be a good fit for the newly created Religious Liberty Clinic at Notre Dame's law school, established the previous year.
The clinic and archdiocese tested the waters for St. Isidore in a seven-page letter to Franklin, the charter school board chairman. He was surprised to see it included 32 footnotes, citations to recent Supreme Court rulings and legal arguments about the First Amendment that Garnett had made in her earlier paper.
"Typically, you get a proposal from a vendor that is a page, a page-and-a-half, that says: 'This is who we are. This is what we want to do. This is why we would like to run a charter school,' " he said.
It won't pass legal muster, Franklin told the Catholic officials.
They asked him to request a legal opinion from Oklahoma Attorney General John M. O'Connor.
Franklin agreed, confident that the attorney general would share his constitutional concerns.
He was wrong.
• A battle among conservatives
In December 2022, weeks before leaving office, O'Connor backed St. Isidore's, arguing in an opinion that Oklahoma's law requiring charter schools be nonsectarian was likely to be unconstitutional based on the recent Supreme Court cases.
Franklin and Garnett said they were both surprised, but they weren't the only ones.
Republican Gentner Drummond had defeated O'Connor in the GOP primary for attorney general in 2022 and was preparing to take office when O'Connor's opinion was issued.
Both men are religious Christians. But Drummond argued that there was an important difference between the government allowing vouchers to fund religious schools and the state creating a religious school.
He feared the latter could open the door to the government imposing rules on parochial schools that run counter to their beliefs and clear the way for schools run by radical Islamists or the Church of Satan. And he thought Oklahoma was being used by outside interests to push an agenda that ran counter to state law as well as the state and U.S. constitutions.
"We're the perfect target. We're a small state by population. We're a very bright red state," he said in an interview. "They had the perfect trilogy of the governor, the schools superintendent and attorney general."
In February 2023, Drummond replaced O'Connor's opinion with his own analysis that the school's application was unconstitutional.
Shortly before he sent out his letter, he spoke with Garnett, at the archdiocese's request. He recalled her being "flummoxed" that he would take this step, telling him his legal position was in "direct violation" of the three cases in which the Supreme Court had steadily opened more and more public funding for religious schools in recent years.
"Her plea was: 'Please readdress this. … This is the state of Oklahoma discriminating against St. Isidore's,'" Drummond recalled. "I said, 'Respectfully, it is not that.'" They spoke for about 30 minutes, he said, each failing to convince the other.
But the Catholic church and the legal clinic had other powerful backers in the state, which has become one of the nation's foremost laboratories for pushing the boundaries of religion in public schools. In deciding to represent St. Isidore's, Notre Dame had considered the state's politics and what sort of opposition they might run into, according to a person familiar with the church's thinking on the matter, who spoke on the condition of anonymity because they were not authorized to discuss the case.
Republican Gov. Kevin Stitt supports the creation of the school, as does Ryan Walters, the state schools superintendent, who has drawn national attention for trying to put Bibles in classrooms and incorporate the Ten Commandments into school curriculums, among other proposals.
In June 2023, two days before the virtual charter school board was set to vote on St. Isidore's application, Oklahoma's Republican House speaker replaced a charter school board member expected to vote against the proposal to create St. Isidore with an Oklahoma City businessman, Brian Bobek.
Franklin, the board chair, publicly called for Bobek to recuse from the high-profile decision, arguing that his last-minute appointment created the appearance of political manipulation and that Bobek had not been on the board long enough to hear all the arguments about the proposed school. Bobek declined and cast the deciding vote in a 3-2 decision ratifying the school, with Franklin in the minority.
The following month the ACLU, Americans United for Separation of Church and State, and others sued on behalf of a group of Oklahoma residents, asking for St. Isidore's approval to be rescinded. They argued that their tax dollars should not go to a school that might discriminate against gay students and those of other faiths. In its application, the school had said all students were welcome but that they were expected to adhere to the school's "beliefs" and religious mission.
"Public schools would become Sunday schools," said Rachel Laser, chief executive of Americans United for the Separation of Church and State. "The religious freedom of religious minorities and the nonreligious would be imperiled."
St. Isidore's backers had expected liberal groups would object to religious charter schools. But what happened next came as a surprise.
Drummond filed his own suit against the virtual charter school board, arguing the contract it signed with St. Isidore violated the state's constitution. That is the case being argued Wednesday.
"That obviously changed everything," said the person familiar with church thinking. "Everyone expects a left-right fight. Suddenly it's a right-right fight." The Oklahoma Supreme Court sided with Drummond, ruling the virtual charter school board must rescind the St. Isidore's contract because the school violated the First Amendment's establishment clause, Oklahoma law and the state's constitution.
"Are we being used as a test case? It sure looks like it," Oklahoma Justice Yvonne Kauger said during oral arguments. She suggested that a dismantling of the wall between church and state would have far-reaching consequences. "When the wall comes down, it's 'Katy, bar the door.' Everyone would be affected."
• A potential landmark ruling
That high stakes proposition now goes before the Supreme Court.
People on both sides of the case say the key question will be whether charter schools are fundamentally private operators or part of the public school system. If private, religious practice will probably be viewed as constitutional; if public, it would be banned.
"The state has enlisted private entities to run schools and given public funds to them," Garnett said in an interview, referring to the private organizations that run most charter schools. "And it has said the only kind of pluralism that is off the table is religious pluralism."
Opponents will argue the opposite.
"Our founders believed that when the state acts and starts picking winners and losers in a religious area, our religious liberties are compromised," said Drummond, who will be in the second chair for Oklahoma on Wednesday. "For us to have the liberty to freely exercise religion or not, we must maintain a separation between state action and religion. To go down this road jeopardizes religious liberty."
Seven of the nine justices were raised Catholic, and six attended Catholic high schools. The court's ties to Notre Dame and Garnett's law clinic are substantial, prompting court watchdogs to call for some of the justices not to hear the case.
In 2021, Notre Dame paid Justice Clarence Thomas almost $20,000 to give a speech. In 2022, an affiliate of the clinic flew Justice Samuel A. Alito Jr. to Rome for a four-day trip to give a speech. In 2022 and 2023, Notre Dame's Law School paid Justice Brett M. Kavanaugh to speak and teach in Rome and London.
The court's ethics code allows justices to accept these opportunities from universities, which are seen as helping spread knowledge about the law and the court. Many other prestigious schools have similarly paid the justices for educational engagements on campus and abroad, although by one measure Notre Dame has spent the most.
The only justice planning to sit out the case is Amy Coney Barrett, a former Notre Dame law professor who is close friends with Garnett. In 2020, as Barrett was leaving her job at the university to join the high court, a staffer from the religious liberties clinic purchased Barrett's Indiana home.
Barrett's recusal means only eight justices will vote on the legality of St. Isidore's. The three liberals are widely expected to see the school as unconstitutional. A 4-4 tie would keep the state Supreme Court's rejection of the school in place.
Church officials say they are excited about opening their new virtual school in fall 2026. That has always been their goal, they say.
But for opponents like Robert Franklin, it was clear from the start that far more is at stake.
"This was never really about two or three hundred children in the state of Oklahoma, in a far-flung rural setting, who wanted a virtual Catholic education," he said. "This is a test case from the beginning."