School Choice & Charters

A Proposed Catholic Charter School Is New Test for Religion and Public Education

By Mark Walsh — February 09, 2023 10 min read
Oklahoma Attorney General John O'Connor speaks during a bill signing ceremony for a bill making it a felony to perform an abortion, punishable by up to 10 years in prison, Tuesday, April 12, 2022, in Oklahoma City.
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The application for a new charter school in Oklahoma is, in many respects, similar to others backed by well-organized charter sponsors. It is full of charts and buzz phrases about “an innovative and interactive curriculum,” “organized peer interaction,” “differentiated instruction,” and “whole student supports.”

But this proposed online academy marks a departure from the long-held understanding of charter schools as an innovative form of public education. It starts with the name: St. Isidore of Seville Catholic Virtual School.

“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.”

In other words, says the application from the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, it will be “a Catholic school.” But if approved, it is one that would receive as much as $2.5 million in state money to serve a projected 500 students in its first year.

Although the sponsors do not mention it in the application, they are aware that Oklahoma law requires charter schools to be “nonsectarian” in their programs and operations and that no sponsor may “authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”

But they are also aware that recent U.S. Supreme Court decisions backing the inclusion of religious schools in certain school choice programs have prompted a debate about whether states may provide public funds to charter schools sponsored by religious institutions or even whether they must do so if they also fund secular public charter schools.

“If you are going to offer an educational program generally, you can’t discriminate against some participants because they happen to be religious,” said Brett Farley, the executive director of the Catholic Conference of Oklahoma, the public policy arm of the Archdiocese of Oklahoma City and Diocese of Tulsa.

Some other legal experts are horrified at the proposition. They reject interpreting the recent Supreme Court rulings in a way that would allow or even require religious charter schools, and they note that the concept of charter schools has always been a way for states to delegate a portion of a government function—to provide public education—to independent operators.

“The explicit merger of public education with religious organizations to deliver a public education to students is something we haven’t seen or even contemplated happening in our lifetimes,” said Derek W. Black, a law professor at the University of South Carolina who has written with skepticism about the inclusion of religious school in educational choice programs.

The church will present its application before the Oklahoma Virtual Charter School Board on Feb. 14, and a decision could come within a month or two. The board would then likely take at least a month or two before acting on the application, and there could be back-and-forth on some of the details, an official with the board said.

Oklahoma opinion says ‘substantial public funds’ going to religious charters not a problem

In late 2021, local Catholic leaders asked the Oklahoma Statewide Virtual Charter School Board whether it might consider approving an application for a religious charter school. That prompted the board to seek an advisory opinion from Oklahoma’s attorney general. Last Dec. 1, then-Attorney General John M. O’Connor drew nationwide notice for concluding that the provisions of Oklahoma law requiring charter schools to be “non-sectarian” and not affiliated with religious institutions would likely be struck down by the Supreme Court.

“In sum, we do not believe the U.S. Supreme Court would 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,” O’Connor said in the opinion.

The attorney general analyzed three recent decisions by the high court:

  • In 2017, in Trinity Lutheran Church of Columbia v. Comer, the court held that Missouri violated the U.S. Constitution’s guarantee of free exercise of religion when it denied church participation in a state program to improve the safety of playgrounds. The decision in that case was based on the religious status of the Lutheran school that had been denied a state grant.
  • In its 2020 decision in Espinoza v. Montana Department of Revenue, the court held that a state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a tax credit program for donations to tuition organizations.
  • And in last year’s decision in Carson v. Makin, the justices ruled that Maine’s exclusion of religious schools from a state tuition program for towns without public high schools violated the free exercise clause.

“Under Trinity Lutheran, Espinoza, and Carson, it seems obvious that a state cannot exclude those [charter schools] merely ‘affiliated with’ a religious or sectarian institution from a state-created program in which private entities are otherwise generally allowed to participate if they are qualified,” O’Connor said in his advisory opinion.

When it comes to the idea that charter schools affiliated with religious institutions would be teaching religion at public expense, O’Connor concluded that “it is not a problem that, under this interpretation, a substantial amount of public funds could be sent to religious institutions or their affiliates.”

He quoted language from the majority opinion in Carson that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend” the First Amendment’s prohibition on government establishment of religion.

O’Connor said “the more complex question” is whether the state must approve a religiously affiliated applicant to run a charter school in conformance with the applicant’s religious traditions. O’Connor said the answer was “likely yes,” based in part on his interpretation of a thorny legal issue surrounding whether charter schools run by private organizations are “state actors” under the law, which, simply put, means they act with government authority.

O’Connor said charter schools in Oklahoma are unlikely to “fit this bill” of being state actors, though he acknowledged that federal appeals courts are divided on the question.

Some strong pushback on Oklahoma opinion’s view of religious charter schools

O’Connor had been appointed to fill a vacancy in 2021 but lost his Republican primary last year to remain attorney general. There is no indication that the new attorney general, Gentner Drummond, a Republican, has withdrawn the opinion.

On Jan. 31, Americans United for Separation of Church and State, based in Washington, sent a letter and detailed legal memorandum to the Oklahoma virtual charter board urging its members to reject the attorney general’s opinion and deny any applications for religious charter schools.

“Oklahoma charter schools are public schools,” says the Americans United letter. “Thus the U.S. Constitution requires that they remain neutral on issues of religion and prohibits them from teaching religion. This fundamental safeguard is critical to protecting religious freedom and is part of the rich history and tradition of this country.”

The group argues that even if charter schools could be classified as private entities, they are still acting with government authority and carrying out the governmental function of public education, and thus they are “state actors” under the law.

“And as state actors, charter schools must comply with the U.S. Constitution, including the First Amendment’s establishment clause,” Americans United said.

“As governmental entities, Oklahoma charter schools do not have rights of their own under the free exercise clause or any other clause of the First Amendment,” the memo says. “That is because First Amendment rights are rights against the government, not rights of government.”

Black, of the University of South Carolina, says some charter school operators began pursuing the legal theory that their schools were not state actors before the question of religious charters bubbled up, as a way to avoid legal liability for teacher dismissals, student discipline, sex discrimination, and other matters.

“Charter schools are not part of the private sector,” said Black. “There is not a single principle in Espinoza or Carson that justifies religious school charters.”

Nicole Stelle Garnett, an associate dean and professor at the University of Notre Dame Law School and an expert in the First Amendment’s religion clauses, said she agreed that Carson did not address the question of religious charter schools. But she believes the Oklahoma attorney general opinion is correct in concluding that, in at least that state, they would be permitted under the First Amendment’s establishment clause and required to be approved under the free exercise clause.

“I’m pretty comfortable with the attorney general’s opinion, especially on the virtual side, since those schools are so lightly regulated,” said Garnett, who has been an adviser to the Alliance for Catholic Education and has consulted with the Oklahoma Catholic dioceses on their charter application.

She also argued that the question of whether charter schools are state actors is “pivotal” for the discussion, and the answer may vary among the more than 40 states that allow charter schools based on differences in state charter school laws and other case law.

“The fact that charter schools are so diversely regulated in each state means that every state would require a separate legal analysis,” she said.

The Supreme Court has a case pending before it that asks whether charter schools in North Carolina are state actors, a high profile case in which the underlying dispute was over a conservative charter operator’s rules requiring female students to wear skirts. The justices in January asked the U.S. solicitor general’s office to file an opinion about whether it should take up full consideration of the state actor question in that case, Charter Day School v. Peltier.

The proposed virtual school is named for the patron saint of the internet

More than 80,000 students in Oklahoma attend charter schools, or about 11 percent of total public school enrollment, according to the state Department of Education. A growing number of those—some 43,000 as of 2021—were in virtual charter schools.

For Catholic leaders in Oklahoma, the attorney general’s opinion was enough to motivate them to file their formal application late last month for the St. Isidore of Seville Virtual Charter Academy.

Isidore was a 4th and 5th century theologian and Roman Catholic archbishop of, yes, Seville, Spain, who is sometimes called “the last scholar of the ancient world.” In 1997, Pope John Paul II named Isidore the patron saint of the internet.

Farley, of the Oklahoma Catholic Conference, said leaders decided to make the first application for a religious school charter to be a virtual one. The application estimates K-12 enrollment to be 500 students for the first two years, and grow to 1,500 students by 2028.

“We’re not the only Catholic dioceses to recognize the growing challenges to Catholic education,” he said, referring to the COVID-19 pandemic putting further pressure on attendance at brick-and-mortar parochial schools.

“There is a huge demand for school choice in rural areas of our state,” he said. “We think virtual education is the most cost-effective way to do that.”

The charter application states that students “of all faiths or no faith who appreciate and desire a robust Catholic education” would be accepted into St. Isidore, which is consistent with Catholic schools elsewhere, especially in urban areas.

The application says the school would hire “educators, administrators, and coaches committed to living and teaching Christ’s truth” as understood by the Catholic Church. The application appends the proposed employee handbook, which says the school will follow all state and federal laws “to the extent the teachings of the Catholic Church allow.” The handbook’s non-discrimination provisions cover several criteria such as race, sex, disability, citizenship, and veteran status, but not sexual orientation or gender identity.

If approved, St. Isidore of Seville school would not open its virtual doors until July 1, 2024. Still, Farley said he expects considerable debate over this school and the issue of religious charter schools to continue.

“We expect that regardless of whether this application is approved, this will get litigated,” he said.

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