Oklahoma shatters legal norms by approving total taxpayer funding of parochial school

ACLU, Americans United immediately announce plans to challenge 3-2 decision

The dome of the Oklahoma Capitol. Photo by Zach Lucero, licensed by Unsplash.

As recently as the start of this decade, it would have been unthinkable that a state government would have given approval for total state funding of a parochial or other church-run school. But a board in Oklahoma did exactly that on Monday, taking last year’s Carson v. Makin decision of the U.S. Supreme Court as a cue to add the proposed St. Isidore of Seville Catholic Virtual School to its short list of privately operated charter schools that get funded by taxpayers.

The school plans to open in 2024, but faces a court fight before then. The American Civil Liberties Union and Americans United for Separation of Church and State announced immediately that they would challenge the decision of the Oklahoma Statewide Virtual Charter School Board in court.

Unless its opening is halted by the courts, St. Isidore would become the first public charter school with a religion-based curriculum to operate with taxpayer funding. Some religious schools receive partial funding through various public voucher and scholarship programs, but St. Isidore does not plan to charge for tuition. And some religious organizations operate charter schools while providing an ostensibly secular education. But St. Isidore would shatter the traditional boundaries of taxpayer support for education that isn’t secular.

The contract between the Oklahoma Statewide Virtual Charter School Board and the Catholic Archdiocese of Oklahoma City has yet to be drafted, so it’s too soon to say with certainty how government restrictions against discrimination in hiring or school admissions will be applied to the school. But the archdiocese has made clear that the education the school will offer will be fully Catholic, with church teachings and values infused throughout the curriculum.

The school expects to serve about 500 students in kindergarten through 12th grade. It would operate virtually. It is named after St. Isidore of Seville, a theologian from the sixth century who has been called, unofficially, the patron saint of the Internet.

The school was approved on a 3-2 vote, with one of the approving votes coming from a board member who had been appointed three days earlier by a Republican legislative leader to fill a vacancy.

The approval came despite warnings from state Attorney General Gentner Drummond that the plan is unconstitutional. In a statement after the vote, he said:

The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers. It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the State to potential legal action that could be costly.

But Brett Farley, executive director of the Catholic Conference of Oklahoma, said he welcomed the legal challenge. The New York Times quoted him saying:

We believe we are in the right. This is a victory for parents, for school choice and for religious liberty.

Oklahoma’s governor, J. Kevin Stitt, a Republican, had supported the plan.

In the Carson v. Makin case that emboldened the Oklahoma board, the Supreme Court ruled 6-3 a year ago that Maine, which provides tuition assistance to students in certain rural counties, could not constitutionally limit funding to nonsectarian schools while excluding religious schools. The court said Maine had no obligation to provide funding of any kind to private schools, but that if it did so it could not discriminate on which schools it would fund based solely on their religious character. However, Maine’s program does not involve total funding in the way that Oklahoma’s does, and Maine’s program is open only to secondary students who don’t have a public school they can attend.

The Supreme Court decision did not address thorny issues that could surface, such as the extent to which Maine could regulate the curriculum of church-run schools that receive funding.