Supreme Court to Decide if Catholic Charter Schools Can Receive Public Funding

(Daily Signal)—Oklahoma consistently ranks among the worst states in the country for public school outcomes. In an effort to improve educational options, the state’s official charter school board and an online Catholic charter school are fighting what they say is religious discrimination all the way to the U.S. Supreme Court.

Charter schools in Oklahoma are run by private entities that receive public funding through a contract with the state. These schools are open to all students, tuition-free. Attorneys from the Christian law firm Alliance Defending Freedom are appealing an Oklahoma Supreme Court ruling from June 2024 that said the state’s charter school board could not authorize a contract with St. Isidore of Seville Catholic Virtual School because the school is religious.

The U.S. Supreme Court will hear oral arguments in the case Oklahoma Statewide Charter School Board v. Drummond on April 30.

Oklahoma Attorney General Gentner Drummond filed a lawsuit against the board in the state Supreme Court for failing to adhere to state law when it granted a charter authorization to St. Isidore. Article 2 Section 5 of the Oklahoma Constitution prevents public money from supporting any religious institution. The attorney general also cited the establishment clause of the U.S. Constitution and a nonsectarian provision in the Oklahoma Charter Schools Act, which classifies charter schools as public schools.

Though not technically a Blaine Amendment, the provision in the state constitution follows from the same history as the proposed but failed 19th-century U.S. constitutional amendment that would have forbidden the states to grant public money or lands to schools with religious affiliations. Thirty-seven states passed their own so-called “mini” Blaine amendments around the turn of the last century. Oklahoma followed suit when it achieved statehood in 1907.

Andrea Picciotti-Bayer, an attorney and the director of The Conscience Project, said the mini Blaine amendments originate from anti-Catholic and anti-minority discrimination.

“You can’t shake the discriminatory foundation and history even if, in Oklahoma’s [case], it may not have had its genesis at the time of [Blaine], it still reflects this anti-religion animus and bigotry,” Picciotti-Bayer said.

Ashley McGuire, a senior fellow with The Catholic Association, said the Supreme Court has been chipping away at the teeth of the states’ Blaine amendments in recent years. In Ezpinoza v. Montana Department of Revenue in 2022, the court held Montana violated the free exercise of religion clause of the First Amendment by preventing families from using state-funded tuition assistance at private Catholic schools.

In a brief filed March 31, Drummond said a taxpayer-funded public Catholic charter school would violate the U.S. Constitution.

“Oklahoma readily agrees that there is no categorical bar against public monies reaching (and funding) private religious schools, including for devotional instruction and ministry, through such parental choice programs,” the filing said. “No one doubts that such an education can be profoundly valuable. But it is not one that states must provide in public schools.”

Oklahoma’s school choice laws offer tax credits and tuition assistance for religious private schools, he said, thus eliminating the need for religious public schools.

The case is not about the exclusion of a religious entity from government aid, according to Drummond’s press secretary Leslie Berger. It is about the state’s creation of a religious school, which is the establishment of religion, she said.

“St. Isidore’s proponents have said the public charter school will be ‘Catholic in every way,’ from employment regulations to Catholic instruction,” Berger said. “As the attorney general has argued, that simply cannot be squared with the Oklahoma Constitution or the U.S. Constitution. The framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution wisely understood how best to protect religious freedom: by preventing the state from sponsoring any religion at all. If St. Isidore Catholic public charter school is allowed to proceed, the inevitable result will be taxpayer-funded public schools teaching Sharia law, Wicca—even the Church of Satan.”

The head of the state’s charter school board said he is more concerned with improving test scores than proselytizing the youth. Oklahoma ranks 48th out of 51 (including Washington, D.C.) in one World Population Review ranking state public school systems based on K-12 performance, school funding and resources, higher education quality, and safety.

“We want to make sure we have great options for families to choose and expand their choices so that we can improve educational outcomes for the state of Oklahoma and the children and the families,” Chairman of Oklahoma’s Statewide Charter School Board Brian Shellem told The Daily Signal.

The charter school initiative gives parents the option to pull their children out of low-performing public schools and give them better educational opportunities at no cost, Shellem said. The charter contract prevents Isidore from excluding children based on religion.

The U.S. Constitution trumps state constitutions on First Amendment violations, according to Alliance Defending Freedom Senior Counsel Phil Sechler.

“That Constitution makes clear that you’re entitled to the free exercise of religion, which the Supreme Court has made clear, means that state programs, government programs that are open to private groups are open to religious groups, too,” Sechler said. “They have to be.”

Shellem said the online school would provide an option for low-income or rural families who may not otherwise have access to a charter or private school. The state’s charter school board approved St. Isidore on its merit as an educational program, he said.

“We want the best results,” Shellem said. “We want the people who can get the job done the best. And we shouldn’t be excluding those who can get it done just because they have a religious affiliation.”