Oklahoma Court Says Charter Schools Are Public Schools, and Religious Charter Schools Are Unconstitutional

On Tuesday, the Oklahoma Supreme Court found the nation’s first religious charter school unconstitutional.  The online charter school will not enroll its first students in September as planned.  In contrast to several recent decisions by the U.S. Supreme Court, Oklahoma’s supreme court justices affirmed the protection of religious liberty by Oklahoma’s state constitution and also by the U.S. Constitution’s First Amendment Establishment Clause. The Oklahoma Court denied the relevance of the First Amendment Free Exercise Clause to this case.

Education Week‘s Mark Walsh reports: “The Oklahoma Supreme Court on Tuesday ruled that the plan for a religious charter school that would receive state funds but be controlled by two Roman Catholic dioceses in the state violated the state and federal constitutions. The court voted 6-2 against the St. Isidore of Seville Catholic Virtual School, sponsored by the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, which was set to begin its contract on July 1 with some 400 to 500 students in its first year, receiving some $2.5 million in state education aid in its first year.”

Are Charter Schools Public Schools or Private Schools?

The decision in this case addresses the question everyone had looked to the case to decide: are public schools public or private? The Associated Press‘s Sean Murphy quotes the majority opinion written by James Winchester, an Oklahoma justice appointed by former Republican Governor Frank Keating: “Under Oklahoma law, a charter school is a public school…  As such, a charter school must be nonsectarian.”

For  National Public Radio and KOSU, Beth Wallis quotes further from the majority opinion: “Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore’s operations constitutes the use of state funds for the benefit and support of the Catholic church… Enforcing the St. Isidore contract would create a slippery slope and what the framers warned against—the destruction of Oklahomans’ freedom to practice religion without fear of government intervention.”  “What St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause… It is about the State’s creation and funding of a new religious institution violating the Establishment Clause. Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause.”

The immediate dissolution of the St. Isidore of Seville Catholic Virtual School will be uncomplicated.  Oklahoma Watch‘s Jennifer Palmer  reports: “The Statewide Virtual Charter School Board met Monday for the last time; starting July 1, the newly created Statewide Charter School Board will oversee all online charter schools and some traditional charter schools. Phil Bacharach, a spokesman for the Office of the Attorney General, said the court’s ruling shouldn’t require a board vote. ‘We read the opinion as declaring the contract to be null and void because it’s unconstitutional… We expect the board and other officers of this state to follow the orders of the Oklahoma Supreme Court.’ The court’s decision prevents St. Isidore from receiving state funding on July 1.”

Education Week‘s Walsh quotes Gentner Drummond, Oklahoma Attorney General and an elected Republican, who brought and argued the case challenging the establishment of an explicitly religious charter school: “This decision is a tremendous victory for religious liberty… I hope that the people of Oklahoma can rejoice that they will not be compelled to fund radical religious schools that violate their faith.”

Will This Case Be Appealed to the U.S. Supreme Court?

Many believe that the case against Oklahoma’s religious charter school has always been a test case intended for a U.S. Supreme Court appeal. CNN reporter Andy Rose quotes John Meiser, an attorney at the University of Notre Dame’s Religious Liberty Clinic which is representing the school in this case, describing his disappointment with Tuesday’s decision in terms that beg for a “Free Exercise Clause” resolution when the case is appealed to the U.S. Supreme Court: “St. Isidore is considering its legal options but today’s decision to condone unconstitutional discrimination against religious educators and the children they serve is one that the school will continue to fight.”

Oklahoma Watch‘s Palmer wonders whether the he U.S. Supreme Court is likely to hear this case on appeal. Despite that constitutional attorney Derek Black declared: “In a lot of ways, the Oklahoma case is a perfect mirror of the legal issues,” he also told Palmer, “I don’t think it’s an attractive case (to the U.S. Supreme Court).”  He told Palmer that the high court declined to consider another charter school case from North Carolina, Peltier v. Charter Day School.”  For Forbes, Peter Greene explains that case, “(A) North Carolina charter school dress code hinged on the same issue, with the (U.S.) Supreme Court ultimately deciding to let stand a lower court’s ruling that the charter was a public school and therefore subject to anti-discrimination laws.”

Palmer explains: “Law professors from across the country said there’s a good chance the court will consider the case. Several said the court might first wait to see if other states resolve similar cases. ‘If you have only one state, they tend to let it lie,’ Willamette University Professor of Law Steven Green said.”

So, another state court declares that charter schools are public schools.  As Peter Greene explains further: “Charters can’t invoke the rights of a private organization to Free Exercise, because they are not private organizations, but part of the state.”  And right now in Oklahoma, religious charter schools are unconstitutional under the Oklahoma Constitution and the U.S. Constitution’s Establishment Clause.