But the reprieve may be short-lived. Both supporters and opponents recognize the constitutional debate over whether publicly-funded charter schools can explicitly promote religion isn’t settled.

“It’s obviously disappointing,” said Nicole Garnett, a Notre Dame University law professor. But the decision — a 4-4 tie — doesn’t set a precedent, she said. “The issue remains alive and will undoubtedly resurface soon.”

Garnett’s novel legal argument in favor of charters being private inspired Catholic church leaders in Oklahoma to apply for a charter in 2023. But ironically, her long and close friendship with Justice Amy Coney Barrett is the likely reason for the split decision. 

As The 74 reported in March, Garnett and Barrett met as Supreme Court law clerks in 1998, both taught at Notre Dame and raised their children in the same neighborhood. Josh Blackman, an associate professor at the South Texas College of Law, and a friend of Garnett’s, predicted at the time that the case “might go to a 4-4 decision.”

“I feel bad for Nicole,” he said. “This is her life’s work.”

Barrett recused herself from the case, and in a simple , the justices said the state supreme court’s ruling last year to deny a charter to St. Isidore of Seville Catholic Virtual School stands — for now.

“It’s a day of celebration and relief,” said Robert Franklin, a former member of the Oklahoma virtual charter board who voted against the school’s application. “I am not so naive [to think] that the matter doesn’t find breath again at a later date, but for today, it’s a day to exhale.”

While the opinion doesn’t say how the justices decided, experts largely suspect that Chief Justice John Roberts played a central role and sided with the three liberals on the court. Early in April’s oral arguments, he appeared skeptical of the school’s assertion that Oklahoma didn’t create or control the school.

The conservative-leaning court, which has increasingly ruled in favor of expanding religious freedom, agreed to hear the case just four days after President Donald Trump took office. Roberts is the author of the three most recent opinions that Garnett and other scholars consider to be a “trilogy” — a over whether a religious school could participate in a state program offering playground resurfacing materials and two cases involving state funds for religious education, in and . But Roberts is also known for restraint. The potential disruption to nearly 8,000 schools nationwide may have proved to be too much for the chief justice, said Robert Tuttle, a professor of law and religion at the George Washington University Law School.

The case “seemed to many people like a vehicle for expanding the idea of school choice as broadly as possible,” Tuttle said. But he speculated that the court — most likely Roberts — “recognized the concerns … that this would have the possibility of killing charter schools.”

He agrees with Garnett that a similar case could rise to the court, but for now, the matter remains unsettled. Even in cases of a tie, justices can issue their own opinions, something they did not do in this case.

“If it were settled, then you would have opinions,” he said. But the case presented multiple “red flags under the Establishment clause.” Thursday’s ruling, he said, means that when it comes to faith-based charter schools, the line between religious freedom and government entanglement is unclear. “What we know is that the Supreme Court doesn’t know it either.”

The decision leaves many Catholic families in Oklahoma, especially those in rural areas, without a publicly funded faith-based option. In a statement, Archbishop of Oklahoma City Paul Coakley and David A. Konderla, the bishop of Tulsa, said that they are “exploring other options for offering a virtual Catholic education to all persons in the state.”

Days before the oral arguments, Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, warned the court and the Trump administration that declaring charter schools to be private would threaten funding for students since state laws define them as public. 

Others argued that a decision in favor of religious charter schools would compromise civil rights protections since many faith-based schools deny admission or services to LGBTQ students or kids with disabilities.

“Families choose public charter schools because they provide innovative, student-centered learning environments tailored to students’ unique needs and because they are accountable to families and taxpayers,” Coleman said in a statement Thursday. “That’s what makes them special, and that’s what we’re here to protect.” 

The administration, as part of its school choice agenda, has heavily promoted charter schools since January by removing Biden-era regulations and increasing funding. But some experts say states might tweak charter school laws to clarify that charters are public despite being operated by private organizations.

“The fact that it was as close as it was is a signal. This is a chance to make some changes because it’s going to come up again,” said Preston Green, an education and law professor at the University of Connecticut. He has recommended that states amend laws to clarify that board members for charter schools are public officials.

Green recognizes that Thursday’s outcome may have been a fluke. A recusal such as Barrett’s is unlikely to happen again. “There’s just no guarantee that Coney Barrett is going to side with the liberals. There’s no guarantee that Roberts — or whoever it was — would come out that way the second time around.” 

In 2020, when Amy Coney Barrett came before the Senate for confirmation to the U.S. Supreme Court, one of her closest friends told a story about their year together working as law clerks in the nation’s capital.

“That last day when you leave the court, you think, ‘Wow, that’s about the coolest thing that’s ever going to happen to me,’” said Nicole Stelle Garnett. She assisted Justice Clarence Thomas during the 1998 term, the same year Barrett worked under Justice Antonin Scalia. “Now, to see my friend testifying before the Senate Judiciary Committee, to walk back up the steps 21 years later is really, really something.”

Fast forward another five years. Garnett, now a law professor at  the University of Notre Dame, is about to have her own Supreme Court moment. 

On April 30, the court will consider a legal question that has defined her career: Can explicitly religious organizations operate charter schools? At the center of the dispute is St. Isidore of Seville Catholic Virtual School, an online school in Oklahoma that planned to serve about 200 students this year before the state supreme court ruled the decision to approve it violated the constitutional provision separating church and state. 

“This could be an earthquake for American public education,” said Samuel Abrams, who directs the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. As the country experiences a rise in Christian nationalism, a favorable ruling could invite the encroachment of religion not only into education but other areas of civic life that have traditionally been non-sectarian. “If the Supreme Court rules in favor of overturning that decision, the church-state cleavage will disappear. That’s a dramatic development for the First Amendment.”

In a sign of the case’s gravity, the Trump administration filed a in support of St. Isidore last week, arguing that “a state may not put schools, parents or students to the choice of forgoing religious exercise or forgoing government funds.”

But Barrett, who handed President Donald Trump a conservative 6-3 supermajority when she was confirmed to the court, won’t be on the bench to hear it. She recused herself, leaving no explanation for sitting out what could be the most significant legal decision to affect schools in decades. 

Observers believe the reason is her friendship with Garnett, who was an early to the school. While she’s not officially on the case and hasn’t joined any legal briefs in support of it, Nicole and her husband Richard Garnett, also a Notre Dame law professor, are both with the university’s Religious Liberty Clinic, which represents St. Isidore. 

In a deep irony, the longtime friendship between the two women, forged in Catholic faith and a conservative approach to jurisprudence, now threatens to tip the scales away from a cause Garnett has spent her career defending,

The recusal increases the chances that the vote could end in a 4-4 tie, which would leave the Oklahoma court’s decision intact. That outcome would prohibit St. Isidore from receiving public funds and likely send proponents of religious charters looking for a new test case. 

Justices typically do not offer reasons for recusing themselves. A spokesperson for the Supreme Court said Barrett had no comment on the matter.

“I feel bad for Nicole,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston. “This is her life’s work, and it might go to a 4-4 decision.” 

Blackman, a proponent of religious charter schools, has known the Garnetts for years. “Amy knows what Nicole did for this case,” he said. “The case is so significant because it’s an application of both [the Garnetts’] Catholic faith and their views on constitutional law.”

‘A heady experience’

The friendship between Garnett and Barrett developed long before the legal clash over St. Isidore. When Trump nominated Barrett to replace Justice Ruth Bader Ginsberg, how the two first met at a coffee shop the spring before they became high court clerks in the late 1990s. 

“I walked away thinking I had just met a remarkable woman,” she wrote in a for USA Today.

There weren’t too many high-profile cases that year, Garnett said. But one stands out — a complaint that a Chicago ordinance against gang loitering violated members’ due process rights. The , but Barrett and Garnett performed research for dissenters Scalia and Thomas. the local law allowed police officers to do their jobs and it a “small price to pay” to keep the streets safe.

“It’s a heady experience and really hard work,” Garnett told The 74. “But we all liked each other. We socialized together.”

When Trump nominated Barrett in 2017 to serve on the U.S. Court of Appeals for the Seventh Circuit, all 34 clerks from the Supreme Court class of ‘99 — Democrats, Republicans and independents — wrote to the Senate judiciary committee. 

But none knew Barrett like Garnett. Their personal and professional lives have been intertwined for more than two decades.

When Garnett was pregnant with her first child during their year as clerks, Barrett and the other young attorneys threw her a in the court’s dining room for justices’ spouses. Barrett is godmother to the Garnetts’ third child. After their clerkship, Richard Garnett helped to the boutique Washington law firm where he worked. (He later recruited Justice Ketanji Brown Jackson, one of the court’s three liberals, to the .) 

Before Barrett cast her vote for the majority in the that struck down Roe v. Wade, the New Yorker published that described the newest justice as a “product of a Christian legal movement” shifting the court further to the right. The article irked Garnett’s daughter, Maggie, who said it dismissed “a mentor and maternal figure in my life” as a “cold, impenetrable” mouthpiece for conservatives. In a , she wrote that the article portrayed Barrett as “an almost robotic product of her male mentors … rather than as an accomplished and talented jurist in her own right.”  

At Notre Dame, Garnett and Barrett overlapped as faculty members for roughly 17 years. Aside from her focus on religious liberty and education, Garnett also teaches property law. Barrett’s courses focused on constitutional law and the federal courts. 

“She became a lifelong friend,” Garnett said. “She lived around the corner from us and we raised our kids together.”

And when Trump introduced the mother of seven to the nation, Garnett was seated in the Rose Garden along with senators, White House officials and other dignitaries.

Given their intersecting interests, it’s very likely that school vouchers came up in conversation. Until 2017, Barrett served as a trustee at Trinity School at Greenlawn, a classical Christian academy in South Bend, Indiana, that participates in the state’s .

Garnett, meanwhile, was honing legal arguments in favor of expanding such programs. Before joining the faculty at Notre Dame, she worked as a staff attorney for the Institute for Justice, a right-leaning law firm that has led efforts to open school choice programs to religious schools. In one case, the Wisconsin Supreme Court upheld the expansion of to include faith-based schools. 

While at the institute, Garnett also worked on , which challenged Maine’s exclusion of religious schools from a private school choice program. The state won that case, but lost when a subsequent case about the program, , came before the Supreme Court. In Carson, Barrett joined the other five conservative justices in ruling that it was unconstitutional to keep those schools out. 

Garnett, who didn’t work on Carson, said she cried when the family at its center won. 

But even with this victory, Garnett viewed aspects of school choice as unfriendly to religious freedom. She found it troubling that to keep their doors open, many Catholic schools in Indiana to charters, which required them to remove all evidence of their faith.

“Religion has been stripped from the schools’ curricula and religious iconography from their walls,” she wrote in . “There is little doubt that the declining enrollments in Catholic schools are at least partially attributable to the rise of charter schools.”

Her convictions on the role of religion in public life are both personal and professional. She sent her children to Catholic schools in South Bend and views to serve low-income children as vital to urban communities. She captured her years of scholarship on religious liberty in she wrote after Carson: “The Constitution demands government neutrality toward religious believers and institutions. Full stop.”

That view is belied by state laws that prohibit public funds from directly supporting religious schools and that define charters as public schools open to all students. Some critics predict that religious groups running charters would not have to uphold the civil rights protections of LGBTQ students, for example.

Garnett warned that attempts to create religious charters would face litigation for years. But in Oklahoma, Republicans and Catholic church leaders were ready for a fight.

At a time when schools remained shuttered due to COVID, Catholic school leaders in Oklahoma City and Tulsa wanted to expand virtual options and “reach more kids in a big rural state,” she said. A widely-circulated she wrote for the right-wing Manhattan Institute offered a legal path to get there. 

“I think that we found each other,” she told The 74. “I didn’t go looking for a client here. It’s very organic how the whole thing unfolded.”

‘Hot ticket’ 

If other recent school choice cases are any indication, there’s still a good chance the court will overturn the Oklahoma Supreme Court’s opinion. Such a precedent-setting development would have a huge impact on the nation’s educational landscape, said Michael Petrilli, president of the conservative Thomas B. Fordham Institute.

The court could say that “a charter school authorizer can’t turn down an otherwise qualified applicant just because it is religious, or proposes a religious school,” he said. “That would apply immediately to all states with charter laws on the books.”

Garnett dismissed the idea that a victory for St. Isidore will open the floodgates to thousands of religious schools becoming charters. Applicants would still have to meet state criteria for approval, she said.

The ruling “may shed light on other state’s arrangements, but it definitely will not require all states to allow religious charter schools,” she said. “That’s not on the table — and it’s not how the court works.”

But others are not so certain. 

“The implications for education and society could be profound,” said Preston Green, a University of Connecticut education professor.  “It would mean that the government cannot exclude religious groups from any public benefits program.”

With oral arguments approaching, Notre Dame law students who have worked with Garnett over the past two years have already asked if she can get them a seat in the courtroom for such “a hot ticket,” she said. 

She won’t talk about why her friend recused herself from the case, but acknowledged the stakes. 

“My hope is that it won’t go to a 4-4,”  Garnett said “My hope is that they wouldn’t have granted [a hearing] if they thought it might. But I know you don’t make assumptions about anything.”