Oklahoma Approves the First Religious Charter School in US, Prompting Threats of Litigation

An Oklahoma school board approved the nation’s first publicly funded religious charter school.

The Oklahoma Statewide Virtual Charter School Board voted 3–2 on June 5 to approve an application by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa for a new online school, St. Isidore of Seville Catholic Virtual School.

The fact that religion will be woven into the daily curriculum will likely make it a test case for the legality of taxpayer funding for religious education nationwide.

Social conservatives have long advocated for the expansion of school choice to allow families to have the option for religious education.

“This is a win for religious liberty and education freedom in our great state, and I am encouraged by these efforts to give parents more options when it comes to their child’s education,” Oklahoma Gov. Kevin Stitt said in a statement.

Archdiocese to Receive State Assistance

Religion is “baked into everything we do,” Brett Farley, executive director of the Catholic Conference of Oklahoma, told The Washington Post.

Farley called the move “a watershed moment in the school-choice movement” and said that “our aim is to continue doing what we’re already doing in Catholic schools.”

The Catholic Conference of Oklahoma handles public policy and government affairs for the archdiocese.

The new charter school will offer Catholic teachings in its daily curriculum, with plans to start enrolling students in grades K–12 by fall 2024.

The archdiocese said the religious school will initially provide a Catholic education to 500 students in inaccessible parts of the state.

Many rural families live too far away from the closest parochial school and lack a proper religious education, say supporters.

In response, the atheist advocacy group Americans United for Separation of Church and State immediately said it would challenge the decision in court.

“It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families than the state establishing the nation’s first religious public charter school,” Rachel Laser, the group’s president and CEO, told The Washington Post.

“This is a sea change for American democracy,” she claimed.

Nina Rees, president and CEO of the National Alliance for Public Charter Schools, agreed, telling The Washington Post that the Oklahoma school board is in violation of state law and the U.S. Constitution.

She said that “all charter schools are public schools, and as such must be nonsectarian,” and that the “Archdiocese of Oklahoma City is trying to make charter schools into something they are not.”

School Choice Spreading Across the Nation

Charter schools are publicly funded educational institutions that are privately run, but still must abide by state and federal rules that govern traditional public schools.

So far, they have typically been considered public schools in the eyes of the law, but some are advocating that they be treated more like private schools and given some exemptions.

Every U.S. state except Texas has some form of school choice policy, and the push to expand these choices is growing through the country.

Nebraska Gov. Jim Pillen on May 30 signed legislation that implements the state’s first school choice program, which supporters say will help meet the needs of students.

The Nebraska Legislature passed the bill in a 33–11 vote last week.

The new law will take effect 90 days after the legislative session ends around the end of August.

Catholic Educators Challenge Taboo

Catholic educators also hope to force the question of whether a taxpayer funded charter school could have a religious element to it and hope that their efforts will invite litigation.

Stitt, a Republican, signed a bill this year that would give parents in the state a tax incentive to send their children to private schools, including those with a religious background.

He wrote a letter to state Attorney General Gentner Drummond that denying the catholic charter school public funding would constitute religious discrimination (pdf) and backed the school’s application.

Drummond, who is also a Republican, has complained that the decision could open the state to costly litigation and strongly opposed the governor’s opinion.

“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” he said.

“It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars.”

Stitt responded, “the mere fact that charter schools are publicly funded, and designated as ‘public schools’ by Oklahoma law, does not transform them into state actors.”

The governor said that in 1982, the Supreme Court ruled that a privately operated school for special needs students “was not a state actor even though ‘virtually all of the school’s income was derived from government funding’ and it was required to ‘comply with a variety of regulations.’”

Supreme Court Weakens Restrictions on Religious Education

Restrictions on religious education for publicly funded schools have been in existence since the 19th Century after 32 states passed laws based on the failed Blaine Amendments, which were designed to prevent public funds from being used to run parochial schools.

In recent years, the longstanding prohibition has been eroded by key court challenges.

The U.S. Supreme Court issued three decisions over the past five years, stating that religious institutions could not be excluded from taxpayer-funded programs that were available to other schools.

The 2017 decision for Trinity Lutheran Church of Columbia, Inc. v. Comer ruled that a church-run preschool in Missouri was entitled to a state grant that paid for playground maintenance on its property.

In 2020, the court ruled in Espinoza v. Montana Department of Revenue that the state of Montana could include religious schools in a program that gave tax incentives to fund private-school tuition scholarships.

Last year, in Carson v. Makin, the court said that a Maine school voucher program, which sent rural students to private high schools, must be open to religious schools.

Challenges to the new law in Oklahoma, may cause the Supreme Court to now decide whether the state can directly fund a religious school.

“The burden of proof is on the opponents of this idea,” said Farley, who argued that the school’s opponents would need to prove why taxpayer funding for a charter school is different from taxpayer funded vouchers that also pay for religious education.

“Our contention is it’s a distinction without a difference,” he said.