Oklahoma Supreme Court considers the legality of the state’s first publicly funded religious charter school

The Oklahoma Supreme Court heard arguments on Tuesday about whether public funds can be used to support charter schools with religious affiliations.

If the state Supreme Court rules in favor of the school, it could become the first Catholic charter school in the nation to operate with public money.

“The U.S. Supreme Court has made it clear that states can’t open up a program to private organizations but discriminate against religious groups,” Phil Sechler, an Alliance Defending Freedom attorney who represents the Oklahoma Statewide Virtual Charter School Board in the case, told the Washington Examiner after oral arguments on Tuesday. “No state can infringe free exercise rights by actually imposing a greater separation of church and state than the establishment clause requires. That’s exactly what’s happened here because there’s no question that the statute, the Charter Schools Act in Oklahoma, essentially says, ‘Private organizations, you can apply and get a contract to operate a school, but you can’t do it if you’re religious.’”

Charter schools are privately run, publicly funded entities that are required by law to follow many of the same policies as fully public schools.

The case arose when, on June 5, the charter school board voted 3-2 to approve an application from the Catholic Archdiocese of Oklahoma City to allow the St. Isidore of Seville Catholic Virtual Charter School into the fold.

Shortly thereafter, Oklahoma Attorney General Gentner Drummond, a Republican, challenged the approval based on the school’s affiliation with the Catholic Church and a clause in the Charter Schools Act that imposes a “nonsectarian” condition on charter schools. Drummond also pointed to a provision in the Oklahoma Constitution barring the expenditure of public money, directly or indirectly, for religious purposes, and he noted a failed 2016 effort to change that.

Drummond is at odds with Gov. Kevin Stitt (R-OK), who supports the school.

“I think that they betrayed their oath of office,” Drummond said in oral arguments of the Virtual Charter School Board’s approval. “And they knew they betrayed their oath of office because I told them if they did that, they would.”

Sechler said it was “really shocking that he said that” to the nine-judge panel, especially because Drummond’s predecessor, Republican John O’Connor, issued an opinion for the board not to enforce the nonsectarian condition of the Charter Schools Act because it is likely unconstitutional under current U.S. Supreme Court precedent.

“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity,” O’Connor’s 2022 opinion said. “This is not how the First Amendment works.”

O’Connor pointed to U.S. Supreme Court cases in 2017, 2020, and 2022 showing it is unlikely the nation’s high court would accept an argument that a “state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools in accordance with their faith alongside other private participants.”

That is because the funds that would be available to St. Isidore are generally available to a variety of private entities that meet the criteria for receiving public funds, and a religious school receiving funding is not an example of the government favoring one religion over another, as the establishment clause prohibits, because they would be similarly available to other affiliations if they met the same criteria.

“The government should not be giving any special favors to religion, but it also shouldn’t be hostile to religion,” Sechler told the Washington Examiner. “If it’s going to open up a program to groups that might be inclined to one point of view or the other, which it does, it can’t say, ‘But only secular points of view are welcome.’”

Currently, all 32 charter schools approved by the board are secular, and Sechler explained that the state’s Virtual Charter School Board has been “neutral toward religion: They didn’t favor it, they didn’t disfavor it, but they weren’t hostile toward it.” He added that the goal of the charter schools, in general, is that it is “better for Oklahomans to have more choices” and noted that attending a religion-affiliated school is not imposed on anyone.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

While it remains a state dispute now, this case is viewed by many as having the potential to end up before the U.S. Supreme Court, and supporters of the school feel confident that the high court would rule in their favor given recent similar religious liberty decisions.

While the Oklahoma Supreme Court gave no indication of timing, attorneys for St. Isidore said they are hopeful they will start receiving state funding on July 1. Classes will be open for Oklahoma students across the state for kindergarten through 12th grade in the fall.