Oral Arguments
The result in St. Isidore is a surprise because, during oral arguments on April 30, 2025, it appeared that a narrow Supreme Court majority would rule in favor of allowing the school to operate.
In an unanticipated development, the Court was tied at four because only eight of its members participated in oral arguments, and Justice Barrett recused herself from participating in the case. Although Barrett did not explain why she recused herself, she apparently did so due to her friendships with former faculty colleagues at Notre Dame who helped in St. Isidore’s defense in their capacities as attorneys.
During oral arguments in St. Isidore, the Justices appeared to have adopted positions consistent with their earlier judgments as supporters or opponents of providing public funding for faith-based schools. On the one hand, during questioning, Justices Thomas, Alito, Gorsuch, and Kavanaugh seemingly favored permitting aid by allowing St. Isidore to open. On the other hand, Justices Kagan and Sotomayor were critical of aid to faith-based schools and allowing St. Isidore to operate; they were joined by Justice Brown, who seemingly disfavored aid in her first such case since joining the High Court.
Interestingly, Chief Justice Roberts, author of the Supreme Court’s three recent opinions permitting aid, Trinity Lutheran Church v. Comer, Espinoza v. Montana Department of Education, and Carson v. Makin, commented that St. Isidore’s creation seems like “much more comprehensive [state] involvement,” raising questions over how he voted. However, because the Justices issued an unsigned per curiam, or “for the Court” judgment, there is no way of knowing how they voted. It is perplexing that the Justices did not offer a rationale on this important issue.
Even though the outcome was a setback for St. Isidore and its supporters, SBOs must remain vigilant because other states have initiated various school choice initiatives — for now.
Reflections on the Case
In reflecting on the outcome of St. Isidore, three unanswered questions that could have provided greater clarity on the status of the use of public monies for students whose parents wish them to attend faith-based and other nonpublic schools are puzzling.
First, it is surprising that neither Justices Thomas nor Alito, strong supporters of religious freedom in education, authored dissents to explain their positions.
Second, it is unclear what impact Justice Barrett’s having recused herself from participation in the case may have had on the Court’s deliberations.
Third, an arguably larger question concerns whether the Court is cutting back on its recent advances in allowing the increased use of public monies for students to attend faith-based schools specifically, or viewed funding an entire school, albeit virtual, as simply a step too far, exceeding the limits of permissible aid. It bears watching to see how this last issue, particularly, plays out.
The upshot is that with the demise of St. Isidore, SBOs should be able to rest a bit easier, at least for now, because this most recent effort to expand the use of public funds for a faith-based school has passed. Even though the outcome was a setback for St. Isidore and its supporters, SBOs must remain vigilant because other states have initiated various school choice initiatives.
In fact, at least 17 states already have adopted a variety of universal school choice laws, such as permitting parents to use vouchers and tax credits to send their children to faith-based and other nonpublic schools.
In the most recent example, on May 3, 2025, Governor Greg Abbot of Texas signed the nation’s largest school voucher program law into effect. The law, which sets aside $1 billion in funding for the 2026–2027 academic year, allows parents to use public funds to pay for their children’s education at accredited nonpublic, including faith-based, schools.
The bill also permits parents to use these monies to pay for a wide range of school-related expenses such as textbooks, transportation, and computers. Families wishing to participate in the program can get about $10,500 to pay for tuition, while parents of children with disabilities can receive up to $30,000.
At the same time, a school choice bill promoting vouchers for nonpublic schools was introduced in the House of Representatives on May 12, 2025, that would earmark up to $5 billion annually for scholarships to help families send their children to attend faith-based and other nonpublic schools.
Earlier, on January 30, 2025, President Trump signed an executive order “expanding educational freedom and opportunity for families,” seeking “to prioritize school choice programs in the [Federal] Department [of Education’s] discretionary grant programs.”
Stay Tuned
In light of state and Congressional legislative initiatives and the Presidential Executive Order, the outcome in St. Isidore is highly unlikely to be the last word on using public funds to permit children to attend faith-based schools. Consequently, SBOs and their teams must remain vigilant as they continue to provide the best possible education for all children in their districts and deter parents from opting their children out of public schools.
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