Oklahoma’s new attorney general has withdrawn the state’s official legal position that public dollars may be used to operate religious charter schools. The move sets aside an advisory opinion by his predecessor that had prompted the first application for a Catholic-themed virtual charter school, and it leaves some uncertainty about what may happen next, and whether the issue may still end up in the courts.
“Religious liberty is one of our most fundamental freedoms,” Gentner Drummond, a Republican who won the general election last fall after defeating the last attorney general, John M. O’Connor, in the GOP primary, wrote in a Feb. 23 letter to the executive director of the Oklahoma Statewide Virtual Charter School Board. “It allows us to worship according to our faith, and to be free from any duty that may conflict with our faith. The opinion as issued by my predecessor misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”
O’Connor’s Dec. 1 opinion about religious charter schools had prompted nationwide discussion, and had motivated the state’s two Roman Catholic dioceses to file a joint application for a virtual charter school that would receive as much as $2.5 million in state funds to serve as many as 500 students in its first year. That application, for a proposed St. Isidore of Seville Catholic Virtual School, is pending before the state virtual charter board.
In anticipation of that application, the board’s executive director had requested the opinion from O’Connor last year.
In the now-withdrawn opinion, O’Connor had concluded that recent U.S. Supreme Court decisions authorizing the inclusion of religious schools in choice programs such as tax credits for scholarship donations, and tuition assistance meant that the high court would likely not “accept the argument that, because charter schools are considered public for various purposes, that a state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools.”
Drummond, in his letter withdrawing the O’Connor opinion, said the recent Supreme Court opinions involved private schools, not charter schools.
“This office has previously recognized that charter schools are public schools established by contract,” Drummond said.
He acknowledged there is an unsettled question of law nationally about whether charter schools run by private organizations are “state actors,” or operating with government authority.
In his letter to Rebecca L. Wilkinson, the executive director of the Statewide Virtual Charter School Board, Drummond said that “without binding precedent definitively addressing whether charter schools are state actors, this office is not currently comfortable advising your board members to violate the Oklahoma Constitution’s clear directive” that public schools be operated “free from sectarian control,” and a state statute requiring that charter schools be “nonsectarian.”
Drummond referred to a public comment by the head of the Catholic Conference of Oklahoma, the policy arm of the Archdiocese of Oklahoma City and Diocese of Tulsa, that the proposed St. Isidore virtual school would be “Catholic in every way.”
The approval of a religious-based charter school such as St. Isidore will “create a slippery slope,” Drummond said. Approving Catholic or other Christian-based charter schools might be welcomed by many Oklahomans, but it would compel the state to approve charters for religions “whose tenets are diametrically opposed” to the faiths of most in the state, he said.
As a state board weighs a charter application, the issue may yet end up in the courts
Brett Farley, the executive director of the Catholic Conference, said via text that “we’re withholding comment for now while we discuss internally.”
Some legal experts believe that based on the Supreme Court’s recent decisions under the First Amendment’s free exercise of religion clause, any exclusion of a private religious group or religious parents from a neutral state program such as charter schools would be grounds for bringing a free exercise challenge that may well be met favorably by the court’s conservative majority.
Critics of the previous attorney general’s opinion, however, praised Drummond’s decision to withdraw it.
“It’s hard to think of a clearer example of violating the religious freedom of Oklahoma taxpayers and public-school families than if Oklahoma established the nation’s first religious public charter school,” Rachel Laser, the president and CEO of Americans United for Separation of Church and State, said in a statement. “The government should not force anyone to fund religion.”
Americans United had sent the Oklahoma Statewide Virtual Charter Board a letter and detailed legal memo outlining its arguments why O’Connor’s opinion was incorrect. It followed up with a separate letter this month analyzing the application for the St. Isidore Catholic Virtual School. And a representative of the group spoke before the board on Feb. 14 to urge it to reject the application for the religious charter school.
A spokeswoman for the Statewide Virtual Charter Board said that Wilkinson, the executive director who had requested the legal opinion about religious charter schools, had no comment about Drummond’s action.
At its meeting earlier this month, the three-member board heard a lengthy presentation about St. Isidore from Catholic representatives. But most of the discussion revolved around the mundane educational aspects of the school, and the application.
After a representative of the Catholic dioceses made a brief response to the criticism from Americans United, and praised O’Connor’s opinion, the chairman of the virtual charter board, Robert Franklin, indicated that he was inclined to leave the legal debate to others.