The case will decide whether the St. Isidore of Seville Catholic Virtual School can be a state-funded public school. Oklahoma’s attorney general brought the lawsuit against the state charter school board that approved St. Isidore’s application.
The case
Brad Clark, with the Oklahoma Attorney General’s office, argues Oklahoma law has set up charter schools to function as public schools — not as private government contractors like the opposition argues.
“The state creates a charter school. The state can shut the charter school down. The state approves the curriculum,” Clark said. “... Charter schools are mandated by the state to include cursive handwriting. … Private schools don’t have that. There are very clear laws and rules that subject charter schools to things that private schools are not subject to. So, they’re public schools.”
Since St. Isidore’s inception, Oklahoma Attorney General Gentner Drummond has argued that approving St. Isidore’s charter school application would violate the U.S. and Oklahoma Constitution. In the suit, Drummond argues:
- The board violated the Establishment Clause of the First Amendment of the U.S. Constitution.
- The board violated Oklahoma’s Constitution, which says public schools shall be “free from sectarian control” and that no public money shall ever be used, directly or indirectly, to support any “sect, church, denomination, or system of religion, or sectarian institution.”
- The board violated the Oklahoma Charter Schools Act, which prescribes that charter schools “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.” It also says a charter school sponsor — in this case, the Statewide Virtual Charter School Board — may not authorize a charter school affiliated with a nonpublic sectarian school or religious institution.
- A 2016 statewide vote rejected a proposed constitutional amendment that would have allowed money to go to sectarian organizations.
- A landmark 2015 Oklahoma Supreme Court case found the placement of a Ten Commandments Monument at the Oklahoma State Capitol unconstitutional. From that opinion: “While the constitutional framers may have been men of faith, they recognized the necessity of a complete separation of church and state and sought to prevent the ills that would befall a state if they failed to provide for this complete separation in the Oklahoma Constitution.”
- Oklahoma’s ability to receive federal education dollars could be jeopardized. To get federal education funds, states submit a plan to the Secretary of the U.S. Department of Education that says they will comply with all applicable laws and regulations. Under the Elementary and Secondary Education Act, a charter school must be “nonsectarian in its programs, admissions policies, employment practices, and all other operations.”
- The establishment of St. Isidore sets a precedent for all kinds of taxpayer-funded religious schools, which Drummond says may conflict with the values and morals of Oklahomans.
In June 2024, the Oklahoma Supreme Court agreed with Drummond. In the 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.
Despite lawyers arguing St. Isidore’s creation was lawful through the U.S. Constitution’s Free (religious) Exercise Clause, the court ruled that as a state-created school, St. Isidore does not exist independently and is not a private entity — as in the other case precedents St. Isidore’s arguments relied on.
“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 the 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.”
But, Kate Anderson with Alliance Defending Freedom, which represents the Statewide Charter School Board, sees it differently.
“When you look at the way the schools are set up, how they are run independent from the state, operated by a private entity who sets up the school, runs the school, it really is a private organization,” Anderson said.
Though charter schools are operated by a private entity, they are established and funded by the state, subject to state regulation and oversight with curriculum and testing, and can be closed by the state.
Anderson said as a private entity, it has a right to the Free Exercise of Religion. She cites a trilogy of recent Supreme Court cases that have expanded religious institutions’ access to public funds: Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue and Carson v. Makin.
“The Supreme Court has, every single time, said that these monies can go to religious entities when they’re taking part in a program that should be open to them but for them being religious,” Anderson said. “So they need to be treated fairly, the same as any other organization, and they cannot be excluded simply because of their religious character, which is exactly what happened here.”
In the petition to the U.S. Supreme Court to review the Oklahoma Supreme Court’s decision, lawyers for the state charter school board argue if that decision were allowed to stand, “it would a create a loophole through which the states can evade the Free Exercise Clause simply by labeling participants in government programs ‘public actors.’”
The petition presents two questions to the high court:
- “Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.
- Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter school program solely because the schools are religious or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.”
The Supreme Court will hear oral arguments April 30. A decision in the case is expected in late spring or summer.
The stakes
Rachel Laser is the president and CEO of Americans United for Separation of Church and State (AU). She said a decision in St. Isidore’s favor would be a philosophical “sea change.”
“I’ll quote Thomas Jefferson, that it’s sinful and tyrannical to require a man to fund a religion that’s not his own,” Laser said. “… So that is fundamentally why it would violate America’s DNA to fund this type of education directly and fully with tax dollars.”
She — and the AG office’s Brad Clark — disagree with ADF’s citing of the trilogy of religious freedom cases. Those cases, she argued, deal with indirect funding of religious entities. Giving religious schools access to the state funding formula would be direct funding.
Laser also brings up another point from the companion lawsuit AU filed on behalf of Oklahoma taxpayers, parents and faith leaders: religion beholden to the pursestrings of the state could be controlled by it.
“With public funding, strings are attached — and they should be,” Laser said. “And that opens religion up to sullying and being controlled and shaped by the government. … It’s bad for religion as much as it’s bad for religious freedom.”
Others say the ramifications of the U.S. Supreme Court reversing the lower court’s decision are overblown.
Michael Moreland is a law professor at the Catholic Villanova University. He said that concern is a non-issue because the Oklahoma charter school board is not attempting to parse out religious curriculum.
“The state can’t dictate what the religious part of the curriculum would be,” Moreland said. “... They do have a set of accreditation, curricular requirements, but they’re not saying anything specifically about how, if St. Isidore is allowed to come into existence, how it will teach the Catholic faith.”
If a state were to make religious curricular decisions, Moreland believes it would run afoul of the Free Exercise Clause.
Moreland said there is a tendency in the rhetoric around the case to “catastrophize” its implications — that it would require every state to have religious charter schools. He thinks that would only be the case in states with charter laws similar to Oklahoma’s.
“In those states where the charter schools are independent contractors and are genuinely private entities that are entering into a contract to provide the charter school, but in a setting that is not directly under the governance of school districts, then … yes. I think that opening up the charter school options to religious institutions will be constitutionally required,” Moreland said.
If charter schools are declared not to be public schools, some say the ramifications would be devastating — for charter schools themselves. Starlee Coleman is the president and CEO of the National Alliance for Public Charter Schools. She said because the majority of charter schools depend on state funding, the financial structure may have to be renegotiated in every state with charter laws on the books.
“In most states in the country, charter schools are funded just like district schools, through the per-pupil funding formula designed for public schools. There’s no state in the country … funding private schools directly through their per-pupil state funding formula,” Coleman said. “That just doesn’t exist. So charter schools would have to find a new funding stream entirely.”
She said a ruling in St. Isidore’s favor would open up a slew of other questions: what happens to taxpayer-backed bonds that charter schools access for infrastructure? What would it mean for charter schools that are given access to public school buildings? What about teachers’ pensions or healthcare programs?
“Saying that, no, every single state that has passed a charter school law has gotten that wrong, and we’re really private schools, we’ll open the door in every place to re-answer every single question that has taken us 30 years to answer,” Coleman said.
Coleman said while some pro-school choice states may be motivated to figure out how to keep charter schools reclassified as private entities on the state funding formula, others may not be so amenable.
“You can imagine a scenario where charter school enrollment will be capped where it is today instead of that state having to accept religious charter schools,” Coleman said. “You can imagine a scenario where some states say, ‘Gosh, this is just a bridge too far. We don’t have a political appetite for taxpayer funding for religious schools, so we’re just going to wind down our charter program.’”
The Attorney General’s Office and ADF agree the case boils down to two points:
- Are charter schools public schools?
- If they are not public schools, do they have the right to Free Exercise of Religion? Or, if they are public schools, would funding religious instruction violate state and federal laws, including the Establishment Clause?
A 2021 study of religious rulings from the U.S. Supreme Court since Chief Justice John Roberts joined the court in 2005 found that in more than 83 percent of cases, the Roberts court ruled in favor of religious groups and people. That compares to about 50 percent for other courts since 1953.
AU’s Rachel Laser said the recent spate of pro-religion rulings “embolden religious extremists” to push the limits of what has been settled law. She said a reversal of the lower court’s decision would fundamentally weaken the wall between the church and the state.
“That would change the fabric of America,” she said.
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