The U.S. Supreme Court on April 30 seemed inclined to overturn an Oklahoma court ruling denying authorization for the nation’s first publicly funded religious charter school.
Justice Amy Coney Barrett recused herself and did not participate in the case known as Oklahoma Statewide Charter School Board v. Drummond. The respondent is Gentner Drummond, Oklahoma’s attorney general.
The school concerned is the St. Isidore of Seville Catholic Virtual School (SISVC), a K–12 school in Oklahoma City approved by the school board.
A charter school is a school that accepts funding from the government but operates independently outside of the established state school system.
“A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution,” the statute reads. The charter school has to be “nonsectarian in its programs, admission policies, employment practices, and all other operations,” it states.
The petition states that the Oklahoma Constitution provides that the state should maintain a “system of public schools ... free from sectarian control.”
In 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa formed St. Isidore of Seville Virtual Charter School, Inc., a Catholic nonprofit corporation, according to the petition. The school offers “a learning opportunity for students who want and desire a quality Catholic education, but for reasons of accessibility to a brick-and-mortar location or due to cost, cannot currently make it a reality.”
The board approved the school’s application in June 2023. As one board member said at the time, the board had to approve the application because failing to do so would violate the U.S. Constitution’s free exercise clause, which all board members had sworn to uphold, according to the petition.
Drummond sued in October 2023, asking the Oklahoma Supreme Court to cancel the school’s contract and declare it violates the U.S. Constitution’s establishment clause, state law, and the state constitution.
Drummond argued that if the authorization were not rescinded, the state would receive “requests to directly fund all petitioning sectarian groups,” and this could include “extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law.”
“[This could] pave the way for proliferation of the direct public funding of religious schools whose tenets are diametrically opposed by most Oklahomans,” the petition reads.
On June 25, 2024, the Oklahoma Supreme Court ruled against the school, ordering the board to cancel the contract and finding that the school was a governmental entity. Because the school was deemed a state actor, denying the school charter status did not contradict the free exercise clause, the court determined.
The state court also found that St. Isidore’s contract with the board violated the Oklahoma Constitution’s prohibition against “using public money for the benefit or support of any religious institution.”
During the April 30 oral argument, the school board’s attorney, James Campbell, told the justices that Oklahoma law allows private organizations to found charter schools and gives them “broad autonomy over their mission, curriculum, and operations.”
He said state law “categorically bars religious groups and programs” from founding such schools, and this violates the free exercise clause of the First Amendment, as the U.S. Supreme Court has held three times in the past eight years.
The court has found that “when a state creates a public program and invites private actors, it can’t exclude people or groups because they’re religious,” said Campbell, who is also chief legal counsel at the Alliance Defending Freedom.
The school board “is committed to this principle of religious neutrality,” the lawyer said.
Chief Justice John Roberts questioned an argument made by Drummond’s attorney, Gregory Garre.
Is the test here whether the school is “a creation and creature of the state?” Roberts asked.
In previous rulings, the court held that “under the First Amendment, you couldn’t exclude people because of their religious beliefs,” he said.
Garre said, “I think the creation point goes to the government entity point.”
Justice Samuel Alito asked Garre if a charter school could put books on elementary school curricula that “have lots of LGBTQ-plus characters [and] same sex couples” and “send the message that this is a perfectly legitimate lifestyle?”
Can they “tell the little kids” that “your parents may say you’re a boy or a girl, but that doesn’t mean you really are a boy or a girl?” the justice asked.
Garre said the school could not do that because Oklahoma law forbids “the teaching of gender studies or race in public schools, traditional public schools, and charter schools.”
Justice Brett Kavanaugh said U.S. Supreme Court rulings “have made very clear, and I think those are some of the most important cases we’ve had, of saying you can’t treat religious people and religious institutions and religious speech as second-class in the United States.”
Not to allow religious organizations to participate in a program would be “rank discrimination against religion,” he said.
Garre said “states may maintain strictly secular public schools. And that’s all the state of Oklahoma has done here.”
Alito said Drummond has made “statement after statement” that “reeks of hostility towards Islam” and that the position Garre is defending “seems to be motivated by hostility toward particular religions.”
Garre denied the accusation, saying it was “entirely incorrect.”
Justice Elena Kagan told U.S. Solicitor D. John Sauer, who was in court to support the school and the school board, that there is a danger that some religions “are going to have no problems dealing with all the various curricular requirements and [there are] religions that are going to have very severe problems dealing with all the curricular requirements.”
The Supreme Court is expected to hand down a ruling on the case by the end of June.
