Update: Backers of taxpayer-funded Catholic school appeal to Supreme Court
Oklahoma’s top court had cited state and federal constitutional violations
Supporters of what would be the country’s first publicly funded parochial school are taking their case to the U.S. Supreme Court.
Attorneys from the Alliance Defending Freedom, a conservative organization that is frequently involved in religious-freedom cases, yesterday filed a petition with the U.S. Supreme Court asking it to overturn a June decision of the Oklahoma Supreme Court, which found that the designation of the St. Isidore of Seville Catholic Virtual School as a charter school would violate the U.S. and state constitutions.
The attorneys filed the petition on behalf of the Oklahoma Statewide Charter School Board.
The appeal raises two legal issues:
Whether the educational choices made by a privately operated school constitute state action simply because it contacts with the state to offer an educational option for interested students.
Whether a state violates the free-exercise clause of the First Amendment when it excludes a school from the state’s charter-school program because of that school’s religious nature.
There is no standard timetable for the Supreme Court to decide whether it will hear the case, and it is common in well-publicized cases such as this one for parties opposing the appeal to file papers asking the court not to consider it.
Original article (June 26, 2024): Oklahoma’s top court strikes down contract for Catholic-run charter school
An attempt by a state school board in Oklahoma to create the nation’s first publicly funded parochial school has hit a major roadblock: On a 7-1 vote1, the Oklahoma Supreme Court agreed yesterday that the proposed school violates the state’s constitution. And on a 6-2 vote, the Oklahoma justices agreed that opening the unprecedented school would violate the U.S. Constitution as well.
Supporters of the school, which has drawn national headlines as one whose opening would upend the traditional understanding of separation of church and state, are virtually certain to appeal the decision.
But the fact that the Oklahoma court invalidated the school based in part on its interpretation of the state constitution could make a successful challenge difficult: Federal courts are reluctant to overrule the way state courts interpret that states’ laws. And the constitutional provisions that the Oklahoma court used in its ruling are similar to ones found in some other state constitutions.
The ruling concerned the decision of the Oklahoma Statewide Virtual Charter School Board to sign a contract with the St. Isidore of Seville Catholic Virtual School, a creation of the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, to operate a charter school. The school would provide a traditional Catholic curriculum online to students throughout the state. Charter schools are publicly funded entities that are operated by private organizations.
The court based a key part of its decision on its understanding of this provision of the Oklahoma Constitution:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
The court’s reasoning in applying the provision to St. Isidore was brief. “The framers’ intent is clear: the State is prohibited from using public money for the ‘use, benefit or support of a sect or system of religion.’” wrote Justice Winchester in the majority opinion. He said public funding of the school violates the “plain terms” of this section and “would create a slippery slope and what the framers warned against — the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
Winchester also wrote that the school contract conflicts with another section of the constitution that reads: “Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control[.]” With the planned contract, he said, St. Isidore would become a “state actor,” one not free from sectarian control.
And because St. Isidore would become a “state actor,” he wrote, it would be in violation of the U.S. Constitution when it requires its students to participate in religious activities.
The main dissent in the case, by Justice Dana Kuehn, argued that St. Isidore does not become a state actor by signing a contract to provide services to the state. She argued that as long as state contracts with private organizations to operate schools, it cannot discriminate against an organization simply because of its religious nature. “I find nothing in the State or Federal Constitutions barring sectarian organizations, such as St. Isidore, from applying to operate charter schools,” she wrote.
The ruling received the expected praise and criticism.
Among those praising the ruling was the American Civil Liberties Union, which said the ruling affirms its position that “our public schools are for education, not evangelizing.”
The ACLU also applauded Oklahoma’s attorney general, Gentner Drummond, who had filed the lawsuit seeking to invalidate the contract:
Although some people may be surprised that a Republican attorney general would object to the nation’s first religious public charter school, safeguarding the separation of church and state is not, and never should be, a partisan issue.
On the other side, Phil Sechler, senior counsel for the Alliance Defending Freedom, agreed with Kuehn’s dissent:
Oklahoma parents and children are better off with more choices, not fewer. The U.S. Constitution protects St. Isidore’s freedom to operate according to its faith and supports the board’s decision to approve such learning options for Oklahoma families. ... We are disappointed with the court’s ruling that upholds discrimination against religion; we’ll be considering all legal options, including appeal.
The Oklahoma court gave parties to the case 10 days to ask for a rehearing. Any appeals beyond that would go to federal courts and potentially to the U.S. Supreme Court.
The case is Drummond v. Oklahoma Statewide Virtual Charter School Board.
One justice was recused from the case.