Notre Dame Law School’s Religious Liberty Clinic has been working to support the establishment of St. Isidore of Seville Catholic Virtual School, a state-funded Catholic online charter school in Oklahoma. After being shut down at the local and state courts, the clinic filed a certiorari (cert) petition asking the U.S. Supreme Court to hear the case.
The Supreme Court has accepted the case, meaning the Religious Liberty Clinic will take its arguments in front of the court later this term.
Litigation for the case will be done by the clinic and a defense firm. Dechert LLP partner and Notre Dame alumnus Michael McGinley will be presenting arguments.
Law School professor John Meiser is director of the Religious Liberty Clinic and has been heavily involved with the litigation. "The clinic will be involved every step of the way, just like at the Oklahoma Supreme Court. I was at the council table with McGinley and will be again," Meiser said.
The Religious Liberty Clinic offers Notre Dame law students an opportunity to work on real-world legal cases to supplement their classroom experience. The clinic has filed amicus petitions for the Supreme Court before, but this is the first time one of their cases will be argued before the Court.
"It’s a great opportunity for everyone to be there in the Supreme Court on behalf of our clients, and it's very exciting for our students. I don’t know that when you come to law school you expect to get to work on a case that ends up being heard by the Supreme Court," Meiser said.
Before their arguments can be heard, both the clinic and the Oklahoma attorney general will file briefs to the court. The case will be heard April 30, and the Supreme Court will decide the case by the end of June.
The Supreme Court will be tasked with deciding whether or not a charter school like St. Isidore functions more as a public or private school. In Carson v. Makin, the Supreme Court ruled that state governments granting private school vouchers have to include religious schools. This case is integral to the clinic’s argument; they argue that charter schools are similar to private schools receiving government funding through vouchers because they are both privately operated.
"The question remains at the end of the day, what kind of school is a charter school? Is it a school that is run by the government like a district public school? Or is it a school that is run by private individuals but cooperates with the government. Our view is that it's the latter," Meiser said.
Although the court’s decision may provide guidance to lower courts, it will only technically decide the case for Oklahoma specifically. "Even if the Court were to say religious charter schools have to be permitted, it would only be for Oklahoma because the law is really limited to the facts and the way that charter schools are set up in Oklahoma. It also definitely doesn't answer the question whether any application is going to be granted or not," Professor and former member of the clinic Nicole Garnett said.
Brett Farley is the executive director for the Catholic Conference of Oklahoma and member of the school board which will work to operate St. Isidore if the Supreme Court rules in its favor. "My participation in this effort has been in terms of interfacing with the state as we’ve piloted this process … if they decide in our favor we’ll be able to open the school up as planned. Obviously that would be a huge influence," Farley said.
If opened, Farley hopes that St. Isidore will provide wider opportunities to receive a Catholic education for students in Oklahoma. "The virtual schools help children who cannot access school or children with learning disabilities. This is the church’s mission, to find people in need and help those needs," he said.
