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Oklahoma Supreme Court rules nation’s first publicly funded religious school is unconstitutional

Gentner Drummond
Sue Ogrocki
Oklahoma Attorney General Gentner Drummond

The Oklahoma Supreme Court ruled Tuesday the state’s contract with what would be the first publicly funded religious school is unconstitutional and must be rescinded.

The ruling was decided in a six-to-two majority, with one judge recused.

The lawsuit was brought by Oklahoma Attorney General Gentner Drummond, who argued that because charter schools are public schools in Oklahoma and by law must be nonsectarian, St. Isidore of Seville Catholic Virtual Charter School’s contract was unconstitutional. A comprehensive summary of the AG’s case can be found here.

On Tuesday, the state’s highest court agreed.

In its ruling, it wrote because St. Isidore will evangelize its faith as part of its curriculum, it violates Oklahoma laws, the Oklahoma constitution and the Establishment Clause of the U.S. Constitution. It said there was “no question” St. Isidore was a sectarian institution and will be sectarian in its programs and operations. It defined “sectarian” as an institution of learning “which is owned and controlled by a church and which is avowedly maintained and conducted so that the children of parents of that particular faith would be taught in that school the religious tenets of the church.”

“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 expenditure of state funds for St. Isidore’s operations constitutes the use of state funds for the benefit and support of the Catholic church,” the majority opinion reads. “(...) 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 government intervention.”

Despite St. Isidore arguing its creation was lawful through the U.S. Constitution's Free (religious) Exercise Clause, the court wrote that as a state-created school, St. Isidore doesn’t exist independently of the state and isn’t a private entity — as in the other case precedents St. Isidore’s arguments relied on.

As a public charter school, the court said St. Isidore is a governmental entity and state actor. And because of that, it is subject to the First Amendment’s Establishment Clause, which says the state cannot pass laws that, as the court cites from a 1947 ruling, “aid one religion, aid all religions, or prefer one religion over another.”

Not only does the Clause prohibit government spending in “direct support” of any religious activities or institutions, but, citing a 2004 case, the court writes the Clause “also prohibits the government from participating in the same religious exercise that the law protects when performed by a private party.”

“What St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause,” the court wrote in its majority opinion. “It is about the State’s creation and funding of a new religious institution violating the Establishment Clause. Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause.”

In a statement, Drummond lauded the decision as a “tremendous victory for religious liberty.”

“The framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution clearly understood how best to protect religious freedom: by preventing the State from sponsoring any religion at all,” Drummond wrote. “Now Oklahomans can be assured that our tax dollars will not fund the teachings of Sharia Law or even Satanism. While I understand that the GOvernor and other politicians are disappointed with this outcome, I hope that the people of Oklahoma can rejoice that they will not be compelled to fund radical religious schools that violate their faith.”

The case is likely not over. The court gave St. Isidore 10 days to petition for a rehearing, and it’s expected the decision will be appealed.

StateImpact Oklahoma is a partnership of Oklahoma’s public radio stations which relies on contributions from readers and listeners to fulfill its mission of public service to Oklahoma and beyond. Donate online.

This story was corrected to accurately reflect the makeup of the majority decision.

Beth reports on education topics for StateImpact Oklahoma.
StateImpact Oklahoma reports on education, health, environment, and the intersection of government and everyday Oklahomans. It's a reporting project and collaboration of KGOU, KOSU, KWGS and KCCU, with broadcasts heard on NPR Member stations.
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