An Oklahoma charter school authorizing panel on Tuesday voted to deny a ground-breaking application for a Catholic charter school—a tactic to buy some time as board members wrestle with competing legal opinions over granting public funding to a religious-based school.
The Statewide Virtual Charter School Board voted 5-0 to disapprove, for now, the application from the Roman Catholic Archdiocese of Oklahoma City for the St. Isidore of Seville Catholic Virtual School, which aims to be the first public charter school in Oklahoma—and the nation—to offer a traditional Catholic educational program.
The vote came after the board’s secretary reminded members that it was not unusual for charter applications to be denied initially to require applicants to provide more information, and the move would give the board 30 more days before it would be required to approve or disapprove the St. Isidore application. Without the vote, the board would be required under procedures set out in state law to decide on the application by April 29.
The board will send a letter to the school’s applicants outlining its concerns, which included some nuts-and-bolts questions over governance, their plans for students in special education, and use of technology. But it was clear that the biggest issue surrounding the proposed religious school was whether the board had the authority to approve it.
In December, Oklahoma’s then-attorney general, John M. O’Connor, issued an advisory opinion concluding 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 a state likely would have to approve applications for religiously affiliated charter schools. The opinion drew wide notice and prompted the application for St. Isidore.
In February, however, the state’s new attorney general, Gentner Drummond, withdrew O’Connor’s opinion and argued the federal constitutional questions remain unsettled and that he could not recommend that the Oklahoma Statewide Virtual Charter School Board violate a “clear directive” under the state constitution that public schools be operated “free from sectarian control,” and a state statute requiring that charter schools be “nonsectarian.”
On Tuesday, as the board met to consider the St. Isidore application, its members were provided a new letter from the attorney general’s office, which advised them that they needed to take an up-or-down vote on the application in conformity with the deadlines set forth in state law. But the letter from Deputy Attorney General Niki S. Batt, who was present at the meeting, also reiterated Drummond’s view that “approval of this proposed virtual charter school is in direct violation of Oklahoma law.”
And the letter responded to a question that had been posed by the chairman of the virtual charter board, Robert Franklin, about whether the board would have “qualified immunity and assurance from the AG’s office” that they would have legal protection if any legal proceedings emanate from a vote for or against the St. Isidore application.
Legal experts and groups on both sides of the question have suggested the proposed Catholic charter school may well be decided in the courts, no matter which way the board votes, though it isn’t clear anyone has threatened to sue board members personally, which is what qualified immunity is intended to protect when government officials’ conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Because approval of the St. Isidore application would violate “the express provisions of the Oklahoma Constitution, … this office is not comfortable instructing board members that they will be protected by qualified immunity if they were to vote in favor” of it, Batt said in the April 11 letter to the virtual charter board.
An unvarnished perspective from the state superintendent
Franklin referred to the “gravity” of the decision in the face of threats of legal action no matter which way the board decides.
“It’s not to be dismissed that we take this very seriously as a board,” he said, noting that the board as a whole and its members individually have been sued over past decisions.
“I just think it is important that you all have that at your doorstep to know, OK, if you vote in violation of the [state] constitution, that’s something that’s put at risk,” Franklin said.
The board only recently filled some vacancies and reached its full complement of five voting members. The two newest members, Nellie Taylor Sanders and Scott Strawn, gave some hints that they were at least open to approving the St. Isidore application, though both offered concerns or questions about the more mundane aspects of the application that were to be included in the board’s letter. Besides Franklin, other members of the board said little during the meeting.
Ryan Walters, a Republican who is the elected state superintendent of public instruction and an ex-officio, nonvoting member of the virtual charter board, attended the meeting and made clear where he stood on the application and his view of those who have criticized it.
“We have here an application to provide more opportunities for kids and to show that Oklahoma is a state that truly values religious freedom,” Walters said. “I know that you all have heard from a lot of different folks, and you’ve heard from some radical leftists that their hatred for the Catholic Church aligns them in doing what’s best for kids. Their hatred for the Catholic Church has caused them to attack our very foundational religious liberties in attacking this school. … We can show we are a state that values more options for kids.”
Franklin, referring to a handful of Protestant ministers and other citizens who had offered seemingly civil criticism of the St. Isidore application at the start of the meeting, said to Walters, “No disrespect to you, but I didn’t hear a radical position, nor did I hear an attack to the Catholic Church.”