Update: Oklahoma high court seems skeptical of plan for Catholic charter school
State panel had shattered legal norms in agreeing to fund church-run school
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The Oklahoma Supreme Court appeared skeptical yesterday of state plans to fully fund a Catholic parochial school, Oklahoma news media that covered oral arguments indicate.
The Oklahoma Statewide Virtual Charter School Board last year on a 3-2 vote approved the proposed St. Isidore of Seville Catholic Virtual School under the state’s law allowing the creation of charter schools. Operated by the Catholic Archdiocese of Oklahoma City, the school is scheduled to open late this summer and provide a traditional Catholic education, although in a virtual format. If courts allow it to open, it would become the country’s first public charter school operated by a church, raising obvious constitutional questions related to the separation of church and state.
Oklahoma’s attorney general, Gentner Drummond, had unsuccessfully attempted to persuade the state board that the law was unconstitutional, and he almost immediately filed a lawsuit on the state’s behalf to prevent the school from opening. Arguing the state’s case before the Oklahoma high court yesterday, Drummond said the charter school’s plans are “about the state creation of a religious school which unequivocally establishes religion,” according to The Oklahoman. He said he filed the suit “to defend the separation of church and state.”
Meanwhile, the attorney for the charter school board, Phil Sechler, pointed to recent Supreme Court decisions that have limited states’ ability to prevent funding for church-operated education when they provide funding for secular private education. As a result of those decisions, funding shouldn’t be denied to St. Isidore simply because it is run by religious organization, Sechler said, according to the Tulsa World.
Among those decisions are Carson v. Makin, a landmark 2022 decision in which a divided Supreme Court ruled that the nonsectarian requirement in Maine’s constitution for tuition assistance violates the free-exercise clause of the First Amendment.
Sechler is the senior counsel for the Alliance Defending Freedom, a conservative legal organization active in First Amendment cases involving religious freedom.
Drummond distinguished Carson from the Oklahoma controversy by noting in part that Maine’s state aid went to students or their families rather than directly to schools.
Regardless of what Oklahoma Supreme Court rules, the losing side is expected to appeal eventually to the U.S. Supreme Court.
Much of Tuesday’s arguments focused on whether St. Isidore meets the requirements of state law for being a public school. A decision that invalidates the school under interpretation of state law would be more difficult to successfully appeal to the federal level than one that relies solely on interpretation of the First Amendment.
The case is Drummond v. Oklahoma Statewide Virtual Charter School Board.
There also is a second legal effort to prevent the school’s opening. In that case, a group called the Oklahoma Parent Legislative Action Committee is in a county court trying to block public funding. Currently, according to The Oklahoman, a hearing is set for May 1 on a pre-trial motion involving depositions.
Original article (June 6, 2023):
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.