Oklahoma Supreme Court Rules Against Catholic Charter School Proposal

In a dissent to the state high court’s majority opinion, Justice Dana Kuehn argued that St. Isidore’s would be a partner of the state, not a government entity, and thus the state denying funds to St. Isidore’s because it is religious would violate the Free Exercise Clause of the First Amendment.

Oklahoma Supreme Court
Oklahoma Supreme Court (photo: By Daniel Mayer - Own work / CC BY-SA 3.0, Wikimedia Commons)

The Oklahoma Supreme Court on Tuesday ruled against the establishment of a virtual Catholic charter school, which would have been the first of its kind in the nation.

In the U.S., charter schools are free, publicly funded schools that have greater flexibility in their operations and management than traditional public schools. Buoyed by favorable U.S. Supreme Court rulings in recent years and relatively friendly regulations toward charter schools in Oklahoma, the push to approve the nation’s first religious charter school has been closely watched as a test case that could open up a new form of school choice for Catholic parents. 

The state of Oklahoma, under Attorney General Gentner Drummond, had in October 2023 asked the court to declare the contract with St. Isidore of Seville Catholic Virtual School unconstitutional. In the ruling — from which two justices dissented all or in part — the court agreed, directing the state to rescind its contract with the virtual Catholic charter school. 

Oklahoma’s current law governing charter schools states that they must be “nonsectarian” in their “programs, admission policies, employment practices, and all other operations.” In addition, the Oklahoma Constitution, echoing the U.S. Constitution, forbids government funding of religion.

“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,” the court wrote. 

“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.”

In a June 25 statement, Oklahoma’s two Catholic bishops called the ruling “very disappointing.” The school, which is billed as “a full-time, K-12, tuition-free, online Catholic charter school in the state of Oklahoma,” is a joint project between the Archdiocese of Oklahoma City and the Diocese of Tulsa. 

“We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race, or faith backgrounds,” the bishops said.

In the same statement, Lara Schuler, senior director of Catholic education for the Archdiocese of Oklahoma City, noted that the school has received “200-plus applications” from interested families across the state. The school had its first day of classes scheduled for August. 

“Today’s decision is a setback for Oklahoma K-12 students and to the ideal of free choice and open opportunity in education,” said Misty Smith, the school’s principal. 

“I, however, will not give up hope that the court’s error may be corrected and that St. Isidore will help open the path toward a future where the needs of all Oklahoma students and families are fulfilled, regardless of their background, income, or beliefs.”

The development of the Oklahoma proposal follows two U.S. Supreme Court decisions issued in recent years that appear to open the door to public funding for religious charter schools. In 2020, the Supreme Court’s ruling in Espinoza v. Montana Department of Revenue found that the state’s Blaine Amendment, which prohibited religious schools from participating in a state scholarship program, violated the First Amendment. 

And the court’s ruling in Carson v. Makin, issued in June 2022, struck down Maine’s policy barring students in a student-aid program from using their aid to attend “sectarian” schools, ruling that the policy violated the Free Exercise Clause of the First Amendment by identifying and excluding “otherwise eligible schools on the basis of their religious exercise.”

St. Isidore, which aims to serve 1,500 students online within Oklahoma by its fifth year of operation, has the backing of Republican Gov. Kevin Stitt as well as former state schools superintendent Ryan Walters. Proponents of the plan say the online school would be a boon for rural Oklahoma students who do not have a Catholic school in their area. 

The Oklahoma Statewide Virtual Charter School Board had in April 2023 voted unanimously to disapprove the school’s application, later in June approving the contract 3-2 after revisions to the application.  

Brett Farley, executive director of the Oklahoma Catholic Conference and a board member for the proposed school, told CNA following the first disapproval that the plan’s backers were “not discouraged at all.” He said at the time he believed Oklahoma’s government presents a “favorable environment to negotiate protections for religious liberty” to ensure that the school’s Catholic identity is not threatened by the acceptance of public funds. 

The Archdiocese of Oklahoma City had pushed for approval of the school after former Oklahoma Attorney General John O’Connor issued an advisory opinion in late 2022 stating that because of the Supreme Court’s recent rulings, Oklahoma’s provisions banning religious schools from accessing public funds as charters could be unconstitutional. He cautioned that this legal change would not mean that religious schools using public funds “can necessarily operate however they want.” Drummond withdrew his predecessor’s opinion on the matter.

In a dissent to the Oklahoma Supreme Court’s majority opinion, Justice Dana Kuehn argued that St. Isidore’s would be a partner of the state, not a government entity, and thus the state denying funds to St. Isidore’s because it is religious would violate the Free Exercise Clause of the First Amendment.

“St. Isidore would not be replacing any secular school, only adding to the options available, which is the heart of the Charter Schools Act,” she wrote. 

“The state is not required to partner with private entities to provide common education. But if it does, it cannot close the door to an otherwise qualified entity simply because it is sectarian. … Contracting with a private entity that has religious affiliations, by itself, does not establish a state religion, nor does it favor one religion over another.”