An attorney defending the Oklahoma’s charter school board wasted no time identifying the primary issue before the Oklahoma Supreme Court.
“This is whether the operation of a charter school violates the establishment clause,” said Philip Sechler, representing the Oklahoma Statewide Virtual Charter School Board.
The board’s approval of St. Isidore of Seville Catholic Virtual Charter School last year catalyzed a controversy in the Sooner State that could pave the way for the nation’s first religiously affiliated charter school. That means the case has national ramifications and could reach the U.S. Supreme Court.
The high court sidestepped the issue when it declined last year to review a 2022 appellate court decision that said charter schools were state actors. Other federal circuits have issued conflicting decisions.
Experts have said Oklahoma Attorney General Gentner Drummond’s lawsuit to stop St. Isidore could bring the issue of public schools operated by religious groups back to the nation’s high court to settle.
On Tuesday, the Oklahoma Supreme Court took center stage for a case that has split the state’s top Republicans and frayed relationships within the diverse national charter school movement.
Drummond argued that St. Isidore is a public school and is subject to the same rules as the state’s other charter schools, which include being non-sectarian and tuition-free for families.
Yet in its application to open a new school, it “promises to be “Catholic in every way, Catholic in teaching and Catholic in employment.” Drummond added that the school requires the principal to be a practicing Catholic, while the state’s public schools cannot limit hires to members of one faith.
The Oklahoma Catholic Church and the state, he said, “have formed an actual union” that “eviscerates the separation of church and state” and violates Oklahoma’s constitution and charter school laws. While the U.S. Supreme Court may very well decide someday that public schools can be religious, the state court is limited in this case to a decision based on state law.
Attorneys for the statewide charter authorizer and for St. Isidore, which is intervening in the case, argued that the state does not control charter schools, as Drummond argued. Charter schools are public schools designed to be run by private organizations given autonomy to foster innovation.
“It has its own facilities, its own bank account, its own ability to raise funds and enter contracts in its own name,” Sechler said. “Being a public school does not make St. Isidore a state actor.”
Sechler also pointed out that charter schools hire their own staff, design their own mission statements and academic programs, and determine their own teaching methods. He added that no student is required to attend charter schools.
He said that operating under a state contract said, “does not make it a part of the government.”
Justices peppered the attorneys with questions throughout the arguments, including why using government funds to pay religious hospitals and allowing state scholarships to be used for religious colleges were constitutional.
When justices asked about the recent trilogy of U.S. Supreme Court decisions that struck down bans on religious schools’ participation in state school choice programs, Drummond said those organizations were private, with funding going to families who could choose where to spend it. Justice Dana Kuehn asked if public religious schools should be allowed as counterweights to secular public schools that “expound [ideologies] outside ABC and 123.”
“Does that open the door for a charter school to have a religious component if the public school has an anti-religious component?” she asked.
Justice Yvonne Kauger expressed concern that a U.S. Supreme Court decision in favor of religious charter schools would open the door to many religious organizations seeking to open publicly funded schools.
“When this all comes down – Katie bar the door – everybody would be affected,” she said. “Are we being used as a test case? It sure looks like it.”
St. Isidore attorney Michael McGinley assured the court that St. Isidore was not intended to be a test case but instead was an effort to meet the needs of families. He said many students in rural areas live too far away from in-person Catholic schools.
The state’s existing school choice scholarships, he added, won’t cover the entire cost of education, leaving low-income families to make up the difference. A charter school would solve that problem.
“Voucher programs are wonderful,” he said, “but they’re not perfect.”
