Given the gender identity-related issues many U.S. parents are having with local public schools, Meg Kilgannon, senior fellow for education studies at Family Research Council, says it makes a lot of sense to give them education options that align with their beliefs.
The Supreme Court debated that Wednesday in the case of an Oklahoma Catholic school that wants state certification. Kilgannon told "Washington Watch" that it has attracted great interest nationwide.
After oral arguments, there was no clear indication of how the court might rule in a case from which Justice Amy Coney Barrett, a moderate, has recused herself due to her close friendship with Nicole Stelle Garnett, a professor at Notre Dame Law School who was an early adviser in the case for St. Isidore.
"Here in Washington, D.C., I have been invited to and attended many events talking about and debating the merits of this case and the implications of this case," Kilgannon told show host Jody Hice.
It has drawn division even in Oklahoma, where Governor Kevin Stitt supports St. Isidore, but his attorney general, Gentner Drummond, does not. Both are Republicans.
Drummond contends that the Establishment Clause of the U.S. and Oklahoma Constitutions will be violated if St. Isidore, which provides all instruction online, is certified and begins to receive taxpayer money.
Drummond is confident the Supreme Court will rule against St. Isidore's bid to become a public charter school.
"This is an overwhelming concern for a lot of people," Kilgannon said. "There is always concern about strings attached to public money."
Lots of freedom for charter schools
Yet those strings allow for a broad range of focused educational interests, including charter schools that cater to the lifestyles of LGBTQ youth. Those are operating even in red states like Alabama and Ohio. More are in the works.
As for the question of why the state cannot have a religious charter school, Kilgannon noted that there is "a tension here between free exercise and establishment, speaking constitutionally."
Still, she says the question is a valid one, especially considering Court precedent in multiple cases affirming parents' rights to raise and educate their own children. Cases go back to Meyer v. Nebraska in 1923, and parents' rights were affirmed again in Troxel v. Granville in 2000.
Many parents believe schools that lack notification policies violate their parental rights when their student's gender confusion is kept quiet.
"I think about parents in public schools now who can find that their children have been indoctrinated with gender identity behind their backs. This idea that parents would have a right to choose this kind of education for their children seems pretty reasonable to me," Kilgannon commented.
According to The Heritage Foundation, parents have sued over public school student gender policies in Massachusetts, Maryland, Wisconsin, and California, to name a few.
The New York Post in 2023 published a list compiled by Parents Defending Education that found that 168 school districts – covering 5,904 schools and more than 3.2 million students – have written policies that prevent faculty and staff from informing parents of a student's gender status without the child's permission.
A 4-4 split on the horizon?
Kilgannon said Justice Brett Kavanaugh did a good job of getting through the weeds to the central point in St. Isidore's case.
"He said, 'I think that the school is just asking for them, for people to not discriminate against them because they're religious,'" she relayed, noting a plethora of other available charter schools in the state. A religious one, she said, "just seems to be common sense."
In this case, Barrett's absence puts focus on Chief Justice John Robert as the swing vote.
If he sides with the three liberal justices, who "are very clearly not going to support the school," then Kilgannon said a 4-4 vote would revert to the lower court decision; the Oklahoma Supreme Court's 2023 ruling against St. Isidore would remain in effect.
Its request was deemed unconstitutional due to the school's religious nature.
St. Isidore is operated by the Archdiocese of Oklahoma and the Diocese of Tulsa. Its request to become a state charter school was approved by the Oklahoma Statewide Virtual Charter School Board in 2023 but was subsequently challenged by Attorney General Drummond.
In oral arguments, James Campbell, representing the state's charter school board, told justices the program relies on private organizations to create more options for education within the state. He pointed to three recent Supreme Court decisions he said supported St. Isidore's case, according to SCOTUSBlog.com.
Roberts seemed less certain, saying that Campbell should not be all in for a trio of cases that "involved fairly discrete state involvement."
The St. Isidore case "does strike me as a much more comprehensive involvement," he said.
"The swing vote in this case seems like it's going to be Chief Justice John Roberts, who is Catholic and who has been very comfortable deciding cases in favor of certain kinds of religious schools in public settings," Kilgannon said. "He could go any direction."
