Law & Courts

Lawsuit Challenges First Religious Charter School in Oklahoma

By Mark Walsh — July 31, 2023 4 min read
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Nine Oklahoma residents and one organization filed a lawsuit on July 31 over the state’s approval of the nation’s first religious charter school, a Catholic Church-sponsored virtual academy scheduled to go online in 2024.

The lawsuit, filed in state court in Oklahoma County, challenges the June 5 decision by the Statewide Virtual Charter School Board to approve the application for the St. Isidore of Seville Catholic Virtual School submitted by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa.

The school, which would provide a Catholic curriculum and adhere to the church’s values, would serve 400 to 500 students in its first year and receive about $2.5 million in state aid.

The application was approved 3-2 by the virtual charter board on June 5 after months of debate and competing legal opinions about whether a religious charter school would violate a state constitutional provision that public schools be operated “free from sectarian control,” and a state statute requiring that charter schools be “nonsectarian.”

The lawsuit in OKPLAC Inc. v. Statewide Virtual Charter School Board, backed by Americans United for Separation of Church and State, the American Civil Liberties Union, the Freedom From Religion Foundation, and the Education Law Center, argues that the school cannot be reconciled with those state law provisions.

“In violation of the Oklahoma Constitution and the Charter Schools Act, St. Isidore will provide a religious education and indoctrinate its students in Catholic religious beliefs,” the lawsuit states, and “St. Isidore in fact will discriminate in admissions, discipline, and employment based on religion, sexual orientation, gender identity, and other protected characteristics.”

“Forcing taxpayers to fund a religious school that, as they openly admit will be a place of [evangelization] for one specific religion, is not religious freedom,” said the Rev. Dr. Lori Walke, the pastor of the Mayflower Congregational United Church of Christ in Oklahoma City and a plaintiff in the suit, in a Zoom session with reporters.

Erin Brewer, vice chair of the Oklahoma Parent Legislative Committee, a public school advocacy group, and the lone organization signed up as a plaintiff, said during the session, “The very idea of a public charter school funded by taxpayers and promoting a religion is, at its core, illegal. It is the antithesis of ‘public.’ No parent or taxpayer should be forced to fund someone else’s religion.”

And Rachel Laser, the president and CEO of Americans United, which advocates for a high wall of church-state separation, said, “Today it is one virtual charter school in Oklahoma, but tomorrow it could be your public school.”

The defendants include the Oklahoma Department of Education, which distributes state aid to charter schools and traditional public schools; the statewide virtual charter board and its members; and St. Isidore School.

Ryan Walters, the state superintendent of public instruction, who has supported the religious charter school and is also named as a defendant, issued a statement that said the plaintiffs in the lawsuit were the ones attacking religious liberty.

“It is time to end atheism as the state-sponsored religion,” he said in a statement. “Suing and targeting the Catholic Virtual Charter School is religious persecution because of one’s faith, which is the very reason that religious freedom is constitutionally protected.”

Brett Farley, the executive director of the Catholic Conference of Oklahoma, which speaks for the Oklahoma City and Tulsa dioceses on government affairs, said the lawsuit “is not really a surprise because [the opponents of St. Isidore] have been very clear about their intentions.”

Farley said the church answered many of the criticisms contained in the lawsuit in its revised application for the religious charter school.

Lawsuit focuses on state law, not federal claims

The supporters of the religious charter school have argued that recent U.S. Supreme Court decisions opening up state aid or benefit programs for private schools to bar the exclusion of religious schools, including last year’s decision in Carson v. Makin striking down the state of Maine’s exclusion of religious schools from a tuition aid program, have bolstered their arguments that Oklahoma would violate the U.S. Constitution’s guarantee of free exercise of religion if it rejected the St. Isidore application on religious grounds.

The lawsuit filed by opponents of St. Isidore focuses on the Oklahoma constitutional and statutory provisions and does not cite the First Amendment’s prohibition against government establishment of religion.

“I think it clearly violates the federal Constitution as well,” said Daniel Mach, the director of the ACLU’s Program on Freedom of Religion and Belief. “But there are a lot of state law claims. It’s important to note that Oklahoma has a collection of statutes and provisions that themselves protect against the same sort of favoritism in religion that the federal constitution does.”

Mach noted that the current Supreme Court, with its 6-3 conservative majority, “has been extremely favorable” to free exercise of religion claims in recent years.

He and other lawyers involved in the suit drew a distinction between the high court’s recent cases opening up state aid to private religious schools and the Oklahoma religious charter school, which involves a form of public education that would take on a religious character in unprecedented ways.

“This is so far beyond the pale even of what this current court has said,” Mach said. “I just don’t see this as a vehicle that will go to the Supreme Court.”

Farley, of the Oklahoma Catholic Conference, said, “there is no way to avoid the [federal] constitutional nature of the questions in this case.”

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