Oklahoma Supreme Court Finds Catholic Charter School Unconstitutional

The Oklahoma Supreme Court determined that direct public funding for a religious school violated the state’s prohibition on funding religious institutions.

In June 2023, the Oklahoma Statewide Virtual Charter School Board approved a charter for St. Isidore of Seville Catholic Virtual Charter School. The Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, which submitted the application, would run the school, which would make it the first publicly funded religious charter school in the country.

The board approved the application by a 3–2 vote just two months after unanimously rejecting a previous petition for the same project.

The move was controversial: Oklahoma Attorney General Gentner Drummond, a Republican, said in a statement, “The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers.”

In October 2023, Drummond sued the charter board to “undo the unlawful sponsorship” of St. Isidore. “Today, Oklahomans are being compelled to fund Catholicism,” Drummond said at the time. “As the defender of Oklahoma’s religious freedoms, I am prepared to litigate this issue to the United States Supreme Court if that’s what is required to protect our Constitutional rights.”

On the other hand, Republican Gov. J. Kevin Stitt called the lawsuit “a political stunt [that] runs counter to our Oklahoma values and the law.” Stitt had called the approval of St. Isidore’s charter “a win for religious liberty and education freedom in our great state.”

At issue was the fact that charter schools are public schools: They operate independently from traditional school districts, able to set their own curriculum and take in students regardless of zoning, but they are still funded through taxes like traditional public schools. Drummond claimed in his lawsuit that the board’s decision violated the state constitution, which forbids any “public money or property” from being directed “for the use, benefit, or support of any sect, church, denomination, or system of religion.”

“In its words, St. Isidore intends to conduct its charter school in the same way the Catholic Church operates its schools and educates its students,” according to Drummond’s lawsuit. “The key difference is St. Isidore will have the direct financial backing and authorization of the State as a sponsored public virtual charter school barring this Court’s intervention.”

In a respondent brief, regarding the provision of the state constitution forbidding “public money or property” from going to any religious sect, attorneys representing St. Isidore claimed that “this Court has held twice” that the same clause “allows the State to disburse funds to a religious entity that provides substantial service in return….The Board’s approval of St. Isidore falls squarely within these precedents.”

In its decision, the Oklahoma Supreme Court disagreed. “Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs,” Justice James Winchester wrote for the majority. “The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution. Enforcing the St. Isidore Contract would create a slippery slope and what the framers’ warned against—the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”

“St. Isidore is considering its legal options but today’s decision to condone unconstitutional discrimination against religious educators and the children they serve is one that the school will continue to fight,” said John Meiser, director of the Religious Liberty Clinic at Notre Dame Law School and an attorney representing the school, in a statement to Reason. “St. Isidore merely seeks to join Oklahoma’s diverse array of charter schools, bringing educational choice and opportunity to communities and families in need. The more than 200 children who have applied to attend St. Isidore are a testament to the great promise of this school and we will continue to work so that promise may be fulfilled.”

Oklahoma currently has multiple school choice programs, though they will likely not be affected by this decision. In 2016′s Oliver v. Hofmeister, the Oklahoma Supreme Court upheld that a state program could authorize scholarships that allowed children with disabilities to attend private institutions, including religious schools. The court affirmed that a state contract with a sectarian institution was allowed, so long as it contained an “element of substantial return to the state and d[id] not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state.”

Winchester noted that Oliver did not apply in this case because the scholarship program “did not disperse funds directly to any private sectarian school until a parent of an eligible student made a private, independent selection”—unlike St. Isidore, which would automatically receive state funding by virtue of its charter.

Ultimately, the case hinged on the idea of what schools would, or could, teach. Allowing the board’s approval of St. Isidore to stand “will require the State to permit extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law,” Drummond warned in his lawsuit. “Consequently, absent the intervention of this Court, the Board members’ shortsighted votes in violation of their oath of office and the law will pave the way for a proliferation of the direct public funding of religious schools whose tenets are diametrically opposed by most Oklahomans.”

Indeed, all government policies should be crafted to be as inclusive as possible, giving equal weight and priority to any viewpoint or ideology.

But Drummond’s contention treats the existing public school system as value-neutral. In fact, any Oklahoman who disagrees with the tenets of the schools in their district still must fund them through his tax dollars.

In the past few years, many parents have raged against their local school boards for what they see as inappropriate curriculum; the Department of Justice even deigned to weigh in. But parents should have a say in what their children are taught—and if they don’t like it, they should be free to opt out.

But if most parents disagree with what the school teaches, or if they would simply prefer for their kids to be educated elsewhere, their taxes still go to that school, and they have to shell out extra to send their kid to their preferred school.

Perhaps, then, if public funding for schools is a necessary evil that society has agreed upon, maybe it’s not so bad to let people have a little more say in how that funding is used.

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