WASHINGTON — A state school board in Oklahoma voted June 5 to approve the nation’s first publicly funded religious school.
The Statewide Virtual Charter School Board, in a 3-2 vote, approved an application submitted by the Archdiocese of Oklahoma City and the Diocese of Tulsa for St. Isidore of Seville Virtual Charter School — a virtual charter school for grades kindergarten-12. The tuition-free school, open to all students in the state, would receive state funding.
After the vote, Brett Farley, the executive director of the Catholic Conference of Oklahoma, said in a statement: “We are elated that the board agreed with our argument and application for the nation’s first religious charter school. Parents continue to demand more options for their kids, and we are committed to help provide them.”
In March, he told The Tablet there would be mixed feelings no matter what the board’s final decision would be, saying: “Folks will be cheering or jeering.”
And predictably, both reactions were expressed June 5, and opponents have promised a legal battle.
In a statement just prior to the school board’s vote, Oklahoma Attorney General Gentner Drummond said approving the religious charter school would go against the state’s Constitution.
“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” he said.
Rachel Laser, president and CEO of Americans United for Separation of Church and State, said in a statement after the vote: “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.”
She also said the group would work with state and national partners to “take all possible legal action to fight this decision.”
Conversely, Oklahoma’s Republican Gov. Kevin Stitt, called the vote “a win for religious liberty and education freedom.
“I am encouraged by these efforts to give parents more options when it comes to their child’s education,” he said in a June 5 statement. “Today, with the nation watching, our state showed that we will not stand for religious discrimination.”
St. Isidore of Seville Catholic Virtual School — named after the patron saint of the internet, for essentially creating an encyclopedia in the 600s — plans to open in 2024 to 500 students in the first two years and up to 1,500 students by 2028.
The idea for this school was first presented to state officials in 2021 and has been on a rocky road since with both support and pushback for it.
“It’s sort of a chess game,” Farley said this spring when he was unsure if the school would be approved. He said the application was on “unchartered waters,” and that no matter how the board voted on it there would likely be litigation.
The state charter board had voted against approving the application in April but said it could be refiled after it addressed board members’ concerns.
Farley said the virtual Catholic charter school would “advance religious liberty and educational school choice at the same time” while fulfilling the Catholic Church’s mission to reach out where there are vast needs, especially in rural areas and for students with special needs.
The Oklahoma Catholic Conference thought the time was ripe for this application, he said, particularly after the Supreme Court’s Carson decision last year where the justices said Maine’s exclusion of religious schools from a state tuition program for towns without public high schools violated the free exercise clause.
One of the arguments against state approval of the virtual religious school was that charter schools are still public schools and should be neutral on religion because they are still acting with government authority and carrying out the governmental function of public education, making them, under the law, state actors.
The state actor aspect has been a sticking point. If a school is a state actor, it is subject to the same civil rights laws as mainstream public schools. Catholic schools, that are privately funded, are not held to these same requirements.
Nicole Garnett, a University of Notre Dame law school professor who is part of the university’s Religious Liberty Initiative advising the Oklahoma dioceses in their charter school application, said charter schools are not state actors.
“Charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really ‘state actors,’ ” she wrote in a column in the Catholic publication, First Things.
The legal battle over public religious charters could reach the U.S. Supreme Court before the Oklahoma decision is challenged. Earlier this year, the court was asked to consider a North Carolina lawsuit against a state charter school over its dress code requiring girls to wear skirts.
The American Civil Liberties Union, representing three girls suing the school, said the requirement was discriminatory but the school argues that it is not a state actor and is not required to adhere to the Constitution’s equal protection clause that bars discrimination.
In May, the Biden administration urged justices to deny the petition to review the North Carolina dress code case that could clear the path for publicly funded religious charter schools.
This spring, while the Oklahoma vote was still in the balance, Sister Dale McDonald, a Sister of the Presentation of the Blessed Virgin Mary and the director of public policy and educational research for the National Catholic Educational Association, said the perception that all Catholic schools could become charter schools is “just not going to happen.”
She said the NCEA “supports parents’ right to choose” and noted that that takes many forms.
“The most important thing right now, in a virtual or brick-and-mortar school, is that the right to be a Catholic school is in its faith-based curriculum; that defines who we are.”
