The Oklahoma Supreme Court on Tuesday weighed a potentially groundbreaking case as it took up the state attorney general’s request that it undo a contract that would allow the first religious charter school in the nation to open this fall.
“This case is not about the exclusion of a religious entity from government aid, which would implicate the free exercise of religion,” Attorney General Gentner Drummond told the court during a compelling 90-minute argument session. “Rather, it is about the state creation of a religious school which unequivocally establishes religion. … St. Isidore has promised to be ‘Catholic in every way, Catholic in teaching, and Catholic in employment.’”
The St. Isidore of Seville Catholic Virtual School, which was sponsored by the Roman Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, was approved 3-2 last June by the Oklahoma Statewide Virtual Charter School Board. The contract is scheduled to become effective on July 1, with the virtual school expected to serve some 400 to 500 students in its first year and receiving some $2.5 million in state education aid.
The school has been challenged in several state and federal lawsuits. Drummond, a Republican, asked the state high court to bypass lower state courts and take up the legality of the arrangement, which it agreed to do.
Drummond stressed state constitutional and statutory provisions that bar government aid to “sectarian” institutions, and he said that public funding of St. Isidore “eviscerates the separation of church and state.”
The nine-member court appeared to recognize the significance of the case.
“Is this charter not the first in the nation, this religious charter?” Justice Noma Gurich asked.
“I believe it is the first school that would be a faith-based curriculum,” said Philip A. Sechler, a lawyer with the Alliance Defending Freedom, a conservative legal organization representing the state virtual charter board in this case.
Vice Chief Justice Dustin P. Rowe asked Sechler, “We’re here today because the Catholic Church wants to operate a school and be publicly funded for its school, is that right?”
“It wants to participate in a program that, right now, 32 other groups are participating in,” Sechler said, in reference to the total number of charter schools, brick-and-mortar and virtual, authorized in Oklahoma.
Sechler emphasized arguments that a trilogy of recent U.S. Supreme Court cases require states to allow religious schools and entities to participate in neutral benefit programs. Under those decisions, the awarding of a charter to a religious participant would not offend the First Amendment’s prohibition against government establishment of religion, he said.
“Because St. Isidore does not present an establishment clause problem, it cannot be lawfully excluded from the charter school program,” Sechler said.
Supporters of religious charter look to a trio of recent U.S. Supreme Court decisions
Michael H. McGinley, a Washington-based lawyer, argued on behalf of St. Isidore. He said the Catholic dioceses in Oklahoma were not trying to create a “test case” with the proposal but were seeking to serve a need for Catholic families in the state who did not live close enough to a traditional parochial school, where some could use state-funded vouchers to cover much of the tuition.
He said the church gained the “confidence to apply” for the virtual charter by a December 2021 opinion by then-state Attorney General John M. O’Connor, also a Republican, that the U.S. Supreme Court would likely hold that the state’s bar on aid to sectarian institutions could not allow the exclusion of a religious applicant from the state’s charter school program.
That opinion rested on the U.S. Supreme Court’s decisions in 2017’s Trinity Lutheran Church of Columbia v. Comer, which said a church facility could not be excluded from a Missouri program for improving playgrounds; 2020’s Espinoza v. Montana Department of Revenue, which held that a state constitutional provision barring aid to religious schools discriminated against families seeking to benefit from a tax credit program for donations to tuition organizations; and 2022’s Carson v. Makin, which 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 Carson, it seems clear this is a public educational choice program that the state has decided to open its doors to … private organizations,” McGinley said. “When the state chooses to have a program that it opens to other people, it cannot exclude only the religious from that program. That’s a clear violation of the free exercise clause.”
Drummond said the O’Connor opinion, which he withdrew when he became attorney general in 2023, was “flawed in many respects” and had “assumed away” many of the difficult issues surrounding the legality of a religious charter school.
The U.S. Supreme Court’s three recent cases expanding the allowable uses of public funds at religious institutions all involved private entities and thus are not conclusive for the question before the Oklahoma high court, he said.
“Here we don’t have a private entity that is seeking a public benefit,” Drummond said in reference to St. Isidore. Now that it has signed a contract with the state virtual charter board, he said, “we have a public entity that is fully funded and controlled by the state.”
At least one justice asked questions that appeared sympathetic to St. Isidore. Justice Dana Kuehn asked whether traditional public schools may have “taken a stance against religion itself” by deciding to teach “against religion” or embrace nonbiblical values such as fluid gender identities.
But other members of the court seemed concerned about allowing the religious charter school to go forward. Some asked about whether applications would be forthcoming for an “atheist” charter school or from fringe religions.
“This case is about a Catholic school [that] wants to be fully Catholic funded by public funds,” Gurich said. “So where is the case for taxpayers in Oklahoma not to support the Catholic church, or the Baptist church, or the Episcopal church, or the atheists, or any other church? And why would the churches want to be subject to public control?”
Justice Yvonne Kauger said, “When the wall [of separation between church and state] comes down, it’s Katie bar the door.”
Sechler, the lawyer representing the state virtual charter board, said state requirements would still ensure that only schools providing a quality education would be approved.
“I don’t think, to the extent your honor is arguing the floodgates are open, we’re going to have all these crazy groups applying to be a school,” he said.
“They wouldn’t even be crazy groups, necessarily, it would be every established religion, if they meet the qualifications, and that’s not hard to do,” Kauger said.
The court took the case under advisement and presumably will rule before the St. Isidore contract is set to take effect in July.
