First US religious charter school has day in court

OK Supreme Court hears case on public funding

The Oklahoma Supreme Court heard a case Tuesday that could pry open the door to publicly funded religious charter schools across the country.

The state’s virtual charter school board approved a proposal to establish the school in a narrow vote last summer. St. Isidore of Seville Catholic School, operated by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, would be run similarly to private parochial schools. In those schools, Catholic beliefs and principles are incorporated into various subjects and the fabric of campus life.

St. Isidore, which says on its website that it is accredited by the Oklahoma State Department of Education, would be the first charter school of its kind in the nation. It’s set to start classes in mid-August, according to court documents.

The plan has faced skepticism from the get-go, including from the state’s Republican attorney general, Gentner Drummond, who led arguments at the high court on Tuesday against the board’s members. Opponents say operating a religious charter school on public funding is a violation of the constitutional protection separating church and state.

Charter schools are privately run but publicly funded, which gives them more leeway than traditional public schools to dictate their own curriculum and teaching styles. But some say it also subjects them to the same legal parameters that apply to other taxpayer-funded institutions.

Drummond argued that if the state were to proceed with St. Isidore, it would allow the establishment of, for example, state-sponsored Scientology or Islamic schools.

“Today, Oklahomans are being compelled to fund Catholicism,” Drummond said when filing the lawsuit last fall against the virtual charter school board. “Because of the legal precedent created by the board’s actions, tomorrow we may be forced to fund radical Muslim teachings like Sharia law.”

Oklahoma religious charter school a private entity, defense says

The case is among several in recent years to test how far the courts are willing to bend to support the blending of religion and public education. Proponents note that the U.S. Supreme Court in three recent lawsuits ruled in favor of religious programs’ access to taxpayer dollars.

The school’s defenders also have pointed to the Catholic Church’s track record of producing strong academic results.

Phil Sechler, the attorney for the virtual charter school board and the senior counsel for Alliance Defending Freedom, a conservative Christian legal advocacy group, told the Oklahoma justices St. Isidore is not a public entity because it is “privately owned and operated” by representatives of the Catholic Church. However, he argued, not allowing the school to receive public money like Oklahoma’s 32 other charter schools would amount to religious discrimination that would violate the U.S. Constitution.

Sechler said the charter school program set up by the state is available to all kinds of organizations. The Supreme Court, he argued, has already made clear that programs like the one to create charter schools can’t open participation to private organizations but exclude religious ones.

Oklahoma Supreme Court justices appear skeptical

On Tuesday, each side had 30 minutes to present oral arguments before the full state Supreme Court. With a packed gallery watching, the justices seemed skeptical of an argument that the prospective school is a private entity and not a public one.

Drummond told the justices he, as lead attorney for the state, sued the virtual charter school board “to defend the separation of church and state.”

“This case is not about exclusion of a religious entity from government aid, which would implicate the free exercise of religion,” he said. “Rather, it is about the state creation of a religious school which unequivocally establishes religion.”

According to the Oklahoma State Department of Education website, charter schools are defined as “public schools that are allowed greater flexibility for greater accountability.” As soon as St. Isidore signed a contract to become a charter school, it became a public entity, Drummond said. He noted that public money would begin flowing to the school as of July 1.

“If they said ‘Hey, we’re a public school,’ they lose,” Drummond said afterward. “They are a public school. If it walks like a duck, quacks like a duck, looks like a duck, it’s a duck. It’s a public school.”

The nine justices seemed to understand the gravity of their forthcoming decision. Justice Noma Gurich, in particular, noted several times that St. Isidore would be the nation’s first religionbased charter school, and other justices asked about the religious aspects of the school’s curriculum and how many of school’s board members were Catholic. Michael McGinley, the attorney for St. Isidore, said all five board members are Catholic.

Yvonne Kauger, the longest-serving justice on the court – who was appointed in 1984 – noted if they ruled in favor of St. Isidore, it would set a major precedent: “If the wall (between church and state) comes down, it’s ‘Katy, bar the door,’ ” she said. “Everyone will be affected.”

Ongoing legal battles over separation between church, state

The court did not say when it would rule, but the question it raises is bound to be a protracted fight in the public square. “Make no mistake. This case is not about charter schools,” said Todd Ziebarth from the National Alliance for Public Charter Schools, which opposes the establishment of St. Isidore, in a statement after Tuesday’s oral arguments. “It is about fundamentally altering one of the founding principles of our nation.”

The suit involving the attorney general is one of two challenging St. Isidore and its result could affect the other. The second was brought last July by a group of parent activists who oppose the charter. The plaintiffs, who include other parents, faith leaders and education advocates, are represented by the American Civil Liberties Union and Americans United for Separation of Church and State, among other organizations.

The parents’ suit has faced legal tumult. The judge assigned to the case was removed because of a conflict of interest. The new judge has received dueling filings from each side, including requests for dismissal.

Among the parties weighing in on that case are attorneys for state schools Superintendent Ryan Walters, a former teacher turned conservative firebrand who has become a fixture in efforts to remove “liberal indoctrination” from classrooms. One of Walters’ recent highprofile acts, in January, was to appoint Chaya Raichik, of the far-right Libs of TikTok social media account, to a state library committee. The decision came under heightened scrutiny after the death in February of Nex Benedict, a gender-expansive teen in Oklahoma, amid fears that rhetoric from people like Walters and Raichik was promoting violence against LGBTQ+ young people.

Walters has repeatedly tried to insert himself and involve the agencies he oversees in the Drummond suit, but the high court has rejected those attempts.

Separately, Walters announced last week that he would open a school choice office within the state Department of Education.

“Make no mistake. This case is not about charter schools. It is about fundamentally altering one of the founding principles of our nation.” Todd Ziebarth

From the National Alliance for Public Charter Schools, which opposes the establishment of St. Isidore