The Oklahoma Supreme Court will decide whether the state can directly fund religious education in a case challenging the first religious public charter school.
The state’s highest court on Tuesday heard oral arguments in the case against St. Isidore of Seville Catholic Virtual School, a school to be run by the Archdiocese of Oklahoma City and Diocese of Tulsa. The school is testing the bounds of the separation of church and state.
“Oklahoma has formed a first-in-the-nation actual union of church and state,” Attorney General Gentner Drummond told the court Tuesday.
“Here, we don’t have a private entity that is seeking a public benefit,” Drummond said. “Here, we have a public entity that is fully funded and controlled by the state. It eviscerates the separation of church and state. It combines them.”
Backers of St. Isidore say the U.S. Supreme Court’s recent rulings on religion and schools opened the door to religious entities’ inclusion in taxpayer-funded programs. And excluding a religious entity from a public benefit amounts to discrimination.
Catholic leaders plan to open St. Isidore this fall, and enrollment is underway. The school will be Catholic in every aspect, including instruction and operations. It will begin receiving funding July 1.
The Statewide Virtual Charter School Board approved St. Isidore’s contract in October. That led Drummond to file a petition with the Oklahoma Supreme Court, seeking to rescind the state’s sponsorship of the school.
Two members of that board were present in courtroom Tuesday — Robert Franklin and William Pearson. Each voted against approval of St. Isidore.
The board is represented by the Alliance Defending Freedom, which also developed the arguments that led to the end of Roe v. Wade, and the school is represented by the Notre Dame Religious Liberty Initiative.
“Are we being used as a test case?” Justice Yvonne Kauger asked during Tuesday’s hearing. “No your Honor, not at all,” responded attorney Phil Sechler, with Alliance Defending Freedom.
“It sure looks like it,” Kauger said.
Even though school choice programs apply to private religious schools, attorney Michael McGinley said Catholic leaders want a charter school to ensure families won’t have to pay any tuition at all.
“In a voucher setting, underprivileged families are still largely left with having to make up the difference,” said McGinley, a Washington, D.C., attorney representing St. Isidore. “That’s a real hardship for a lot of families.”
But Drummond said he believes the school was proposed as a test case that is likely to make its way to the U.S. Supreme Court.
Drummond argued the state’s sponsorship of the school violates the U.S. Constitution’s Establishment Clause in the First Amendment, which prohibits the government from establishing a religion, and state statute, which prohibits schools, including charter schools, from being affiliated with a particular religion. It also defies the will of Oklahoma voters, who in 2016 defeated a proposed constitutional amendment to allow public money spent on religious purposes.
Vice Chief Justice Dustin Rowe inquired whether Drummond believes religious hospitals, such as St. Anthony’s, receiving public funding violate the state constitution. Drummond said he sees a distinction.
“We did not create the hospital,” Drummond said. “It’s a private entity providing a public service.”
Justice Dana Kuehn questioned Drummond about whether public schools that teach something that opposes a student’s religious beliefs, like evolution, equated to a form of religious teaching.
If they are going beyond the ABCs and 123s, she asked, would that open the door to giving parents the choice under the free exercise clause?
“I think that if any school were teaching an anti-religious position, it would be challenged in court, and this court would say you can’t do that,” Drummond said.
The Oklahoma Supreme Court’s decision will be published at a later date.
Jennifer Palmer has been a reporter with Oklahoma Watch since 2016 and covers education. Contact her at (405) 761-0093 or jpalmer@oklahomawatch.org. Follow her on Twitter @jpalmerOKC.
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