On Tuesday, the Supreme Court of the state of Oklahoma heard oral arguments in a case filed by Oklahoma Attorney General Gentner Drummond versus the Oklahoma Virtual Charter School Board, which approved a religious charter school last June. The case challenges whether the establishment of St. Isidore of Seville Catholic Virtual Charter School can be legal under the provisions of the Oklahoma Constitution. If the school is permitted to open in August, it will be operated by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.
The Oklahoman’s Murray Evans reports that during oral arguments on Tuesday, “Drummond told justices he sued the virtual-school board ‘to defend the separation of church and state’… Drummond said Article 2, Section 5 of the Oklahoma Constitution was at the heart of his case: ‘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.'”
There are two issues being tested in two cases challenging the establishment of St. Isidore of Seville Catholic Virtual Charter School: (1) protecting children from a charter school’s imposition of religious practice in violation of the constitutional protection of religious liberty, and (2) ensuring that government is not sponsoring charter schools that can select students according to the school’s religious affiliation or discriminate against students whose LGBTQ status (or other characteristic) may violate church strictures.
Drummond’s lawsuit, heard before the state’s supreme court this week, focuses on the protection of religious liberty by ensuring that public schools do not impose religion on their students—an issue with St. Isidore of Seville Catholic Virtual Charter School, which has clearly defined itself as a religious school. For Education Week in 2023, Mark Walsh quoted the school’s application for approval by the Oklahoma Virtual Charter School Board: “‘To the extent permissible under the Oklahoma Charter Schools Act,’ the application says, the school’s purposes, activities, programs, and affairs will operate ‘in harmony with faith and morals, including sexual morality, as taught and understood by the Magisterium of the Catholic Church based on Holy Scripture and Sacred Tradition.'”
A second lawsuit (which was not part of Tuesday’s oral arguments and awaits a hearing in a district court) has been filed by parents, faith leaders, and public school advocates—all part of the Oklahoma Parent Legislative Action Committee. They are represented by attorneys from Americans United for Separation of Church and State, the Education Law Center, the American Civil Liberties Union, and the Freedom from Religion Foundation. Plaintiffs’ primary argument is that St. Isidore of Seville Catholic Virtual Charter School will violate the civil rights of students based on the religious operation of the school. Plaintiffs’ attorneys explain: “The plaintiffs… object to their tax dollars funding a public charter school that will discriminate against students and families based on their religion and LGBTQ+ status, fail to adequately serve students with disabilities, and indoctrinate students into one religion—all in violation of Oklahoma law and our country’s promises of the separation of church and state and public schools that are open to all.”
The Case Heard on Tuesday Is a Constitutional Test Case and Will Likely Be Appealed
The Washington Post‘s Laura Meckler explains that the case heard this week is part of a years-long series brought by the far right to undermine the U.S. Constitutional protection of citizens from the imposition of religion by the state: “In recent years, religious activists have succeeded in tearing down what had been a clear delineation between public funding and religious education. In three (of the most recent) significant rulings, the U.S. Supreme Court found that religious institutions may not be excluded from taxpayer-funded programs that were available to others. In a 2017 case, the high court ruled that a church-run preschool in Missouri was entitled to a state grant that funded playgrounds. In 2020, the court ruled that Montana… include religious schools in a program giving tax incentives for supporting private-school tuition scholarships. And last year, the court said that a Maine voucher program that sent rural students to private high schools had to be open to religious schools.” In today’s Oklahoma case, the issue is whether publicly funded charter schools can be religious under the state’s constitution.
For two decades now, conservative advocates have used far-right legal firms including the Institute for Justice and the Alliance Defending Freedom (the attorneys defending St. Isidore of Seville Catholic Virtual Charter School in the current case) to bring a series of test cases for the purpose of reframing the separation of religion from public education. The strategy has been to reduce concern about the separation of church and state (a principle articulated in the First Amendment’s Establishment Clause) and refocus on protecting religious free exercise in the form of guaranteeing religious private schools the right to the same public tuition vouchers available to other private schools (a First Amendment Free Exercise Clause argument). The contention in these lawsuits is that religious institutions cannot be denied the same public funding that is available to secular institutions because denying them these benefits is a violation of the free exercise of religion. The John Roberts Supreme Court has in all three recent cases endorsed Free Exercise Clause arguments over Establishment Clause arguments.
The Oklahoma Case Will Determine the Future of Charter Schools
Are charter schools public (state actors) or are they private schools? That question is at the heart of the case that was heard on Tuesday in Oklahoma City. Juan Perez Jr. led POLITICO Morning Education this week with this declaration: “The future of American charter schools will be shaped in an Oklahoma courtroom this week.” And in a paper published in December, 2022 in the University of California Irvine Law Review, constitutional scholar Derek Black explains why: “A marriage of religion and state power in the form of public charter schools would practically, ideologically, and constitutionally transform public education as we know it. As a practical matter, religious schools will flood states with requests to convert into charter schools and thereby shift the cost of religious instruction onto taxpayers. Given the number of interested religious organizations, the impact on state public education budgets could be catastrophic. As an ideological matter, the existence of religious charter schools would eliminate the distinct mission and values that have long defined public schools. And as a constitutional matter, the federal and state constitutional rights that students currently enjoy in public schools would vanish.”
There has been confusion about the status of charter schools because over the years, attorneys representing charter schools have, in some court cases, defined the schools as private schools, and in other cases they have defined the schools as public schools.
Some attorneys like Preston Green III at the University of Connecticut law school and Suzanne Eckes at the University of Wisconsin law school argue that because court precedents fall both ways, it is time for state legislatures to “make charter schools ‘public’ for constitutional matters.” They explain: “Charter schools are publicly funded and operate under a contract (charter) with the state or a state authorized entity. Although charter schools are commonly understood to be public schools, they are really public-private hybrids. Like public schools, they are state financed, free, and open to all students. However, they are usually run by private board of directors instead of elected school boards.”
Derrick Black, at the University of South Carolina law school, on the other hand, told Patrick Wall and Cara Fitzpatrick at Chalkbeat: “‘I would say there’s 101 reasons why they are state actors… and none why they are not.’ He noted that charter schools and traditional public schools both receive public money, cannot charge tuition or turn students away, and must adhere to state academic standards. Unlike traditional public schools, charter schools don’t answer to elected school boards, and they enjoy flexibility from some state regulations. But these qualities don’t make charter schools ‘private actors.’… ‘If Oklahoma were to approve the plan for a religious charter school, the state would essentially be endorsing the school’s religious beliefs… That is, the state adopting private religious beliefs as the state’s curriculum… That stamp all by itself is state action.'”
What Did We Learn from Tuesday’s Oral Arguments?
Writing for Oklahoma Voice, Nuria Martinez-Keel describes some of the interchange between Attorney General Drummond, who brought the lawsuit to block the opening of St. Isidore of Seville Catholic Virtual School, and the Oklahoma Supreme Court’s justices. She recounts:
“Drummond said…. religious entities often receive taxpayer funds to help them offer a public benefit, such as a church-affiliated hospital, but he said public education is a core service the state provides. St. Isidore is a joint venture between the church and the state—two entities who agreed to enter into a charter contract with each other to found the school….”
“Vice-Chief Justice Dustin P. Rowe asked whether taxpayers are not ‘indirectly supporting the Catholic Church’ by funding the school and questioned how this would not violate the state Constitution.”
“Justice Noma Gurich seemed skeptical of the idea that a state-funded charter school is free of constitutional obligations. ‘Where is the choice for Oklahoma taxpayers not to support the Catholic Church?'”
“The Court’s most experienced justice, Yvonne Kauger, asked bluntly, ‘Are we a test case?'”
It would appear that several of the justices showed themselves sympathetic to Drummond’s argument that opening St. Isidore of Seville Catholic Virtual Charter School as a public and explicitly religious charter school would violate the Oklahoma Constitution’s protection of the separation of church and state. Many hope the Court will reach a decision before the school is set to open on August 12. An appeal to the U.S. Supreme Court is likely.
janresseger 
It seems that the Oklahoma court is on the right track. I fear, though, the Supreme Court is no longer interested in fact-based decision making with regards to religious arguments. That indeed, seems to be the point of ADF’s many lawsuits – to get a supreme decision while they can.
Derek Black sums it up so well: “Given the number of interested religious organizations, the impact on state public education budgets could be catastrophic. As an ideological matter, the existence of religious charter schools would eliminate the distinct mission and values that have long defined public schools. And as a constitutional matter, the federal and state constitutional rights that students currently enjoy in public schools would vanish.” Churches are shedding members like falling leaves, which means less money for the religious schools and fewer students. This Catholic Church in Oklahoma is hoping it can twist the state constitution, or at least the courts, into helping shore up their financial struggles and keep their schools open. IT’S NOT THE TAXPAYERS’ OBLIGATION TO KEEP THE SCHOOL OPEN!
Public funding of any religion-based institution seems to me to be in direct violation of the separation doctrine. By that I mean both schools and churches (via their special tax breaks). Neither should be supported in any way with public funds.