The Oklahoma Supreme Court will take up a closely watched religious liberty case on Tuesday, with justices considering whether the state can directly fund religious education in the form of a Catholic charter school.
The case is testing the constitutional bounds of taxpayer funding for religious education, with backers of the school confident that the U.S. Supreme Court’s recent rulings on religion and schools have opened the door to what would be the nation’s first religious charter school.
Charter schools are publicly funded but privately run and must abide by many of the rules that govern traditional public schools. Oklahoma law clearly states that charter schools may not be sectarian or affiliated with a religious institution, and the state constitution bars spending public money, directly or indirectly, for any religious purpose, including teaching. Voters rejected an effort in 2016 to change the state’s constitution, with 57 percent voting no to allowing such spending.
Opponents led by Oklahoma’s Republican attorney general, Gentner Drummond, say the proposed school is a blatant violation of both the state and federal constitutions, with Drummond noting the failed referendum in his brief. Drummond said Monday he planned to personally argue the case before the state’s high court.
Approval of the Catholic school represented “disregard for the clear and unambiguous provisions of the Oklahoma constitution,” Drummond argued in his brief, saying he was “duty bound” to prevent “the type of state-funded religion that Oklahoma’s constitutional framers and the founders of our country sought to prevent.”
He also argued that if this Catholic school were approved, the state would be obligated to fund a Muslim school that teaches sharia law, even though most Oklahomans would object.
Last year, the Oklahoma Statewide Virtual Charter School Board voted 3-2 to approve St. Isidore of Seville Catholic Virtual School to be operated by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa. Organizers estimated the school would initially serve 500 students.
School leaders said St. Isidore would approach religion the same way private Catholic schools do, with teachings woven into every subject from math and science to history and literature.
Ahead of the approval, Drummond warned the state charter school board that doing so would be unconstitutional. After the board went ahead anyway, Drummond filed suit to stop it, saying members of the charter school board had intentionally violated their oath of office. Another suit, this one filed by a group of parents, clergy and education activists, is also challenging the new school’s approval.
Supporters of the school said there is little difference between the state funding of a charter school, which parents opt into, and private-school vouchers, where parents take state money to the school of their choice and which the U.S. Supreme Court has already ruled are constitutional.
In making their argument for the Oklahoma school, attorneys for the charter board cited the reasoning offered by the U.S. Supreme Court that the constitution’s guarantee of free exercise of religion means the government cannot discriminate against a religious school simply because it is religious.
“Protecting religious liberty requires placing religious organizations on equal footing with their secular counterparts and not treating religious organizations with hostility,” attorneys for the charter school board wrote in their brief.
One question in the case will be whether the school, in receiving state funding, would be a “state actor” required to follow rules governing government conduct. The charter school board argues it would not.
Leaders of the proposed new school have said they created it in part to provide Catholic education for students in rural areas that do not have a private Catholic school nearby. But it also was set up intentionally to test the legal limits of taxpayer funding for religious schools, part of a conservative push to expand the boundaries of school choice. “If we prevail, it opens up all kinds of opportunities for school choice across the country, not just in Oklahoma,” Brett Farley of the Catholic Conference of Oklahoma said last year.
The school’s supporters include Oklahoma Gov. Kevin Stitt (R).
Although this case was filed in state court, many expect it will ultimately be decided by the U.S. Supreme Court. If the school prevails, it could ultimately lead to a swath of new money for religious education.
“It seems almost like something on the fringe, a minor case somewhere out in Oklahoma. Actually, I think a lot rides on the outcome of the case,” said Charles Haynes, founder of the Freedom Forum’s Religious Freedom Center and one of the country’s top experts on religion in schools.
If the Catholic school prevails, he said, “does this mean then that religions can now start charter schools and they can be religious in nature and they can get the same funding as public schools? If that’s what it means, it’s a huge change.”
In recent years, religious activists have succeeded in tearing down what had been a clear delineation between public funding and religious education. In three significant rulings, the U.S. Supreme Court found that religious institutions may not be excluded from taxpayer-funded programs that were available to others.
In a 2017 case, the high court ruled that a church-run preschool in Missouri was entitled to a state grant that funded playgrounds. In 2020, the court ruled that Montana could include religious schools in a program giving tax incentives for supporting private-school tuition scholarships. And last year, the court said that a Maine voucher program that sent rural students to private high schools had to be open to religious schools.
