By Nuria Martinez-Keel, Oklahoma Voice
WASHINGTON, D.C. — U.S. Supreme Court justices heard oral arguments Wednesday over the nation’s first religious charter school that aims to open in Oklahoma, putting the constitutionality of a state-funded Catholic education to the test.
A state board in Oklahoma approved St. Isidore of Seville Catholic Virtual School to operate as a publicly funded charter school in 2023. The Oklahoma Supreme Court blocked the school from opening in a June ruling, finding the concept of a religious charter school a violation of the Constitution’s prohibition against government-established religion.
The nation’s highest Court, with its conservative majority, agreed to hear an appeal of the ruling. Justice Amy Coney Barrett, a Catholic with ties to two legal groups behind St. Isidore, has recused.
Five of the eight remaining justices who heard the case also are Catholic — John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Sonia Sotomayor. Justice Elena Kagan is Jewish, and Justice Ketanji Brown Jackson is a nondenominational Protestant.
A decision from the Court is expected by the end of June.
The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to open St. Isidore, named after the patron saint of the internet, to offer an online Catholic education to students in all parts of the state, particularly in rural areas with no brick-and-mortar Catholic school.
Both the school and the Oklahoma Statewide Charter School Board, which approved St. Isidore’s founding contract, appealed the state Supreme Court ruling.
Jim Campbell, chief legal counsel of the national conservative legal group Alliance Defending Freedom, presented the statewide board’s oral arguments Wednesday. Michael H. McGinley of Deckert LLP represented St. Isidore. Both contend states cannot exclude certain charter schools from education funding on the basis of religion.
Former U.S. Solicitor General Gregory Garre, now of Latham & Watkins LLP, gave oral arguments on behalf of the Oklahoma attorney general, who said the concept of a publicly funded religious school is unconstitutional.
St. Isidore would be Catholic in all ways but open to students of all belief systems, archdiocese officials have said. Students would have to learn Catholic doctrine, attend Mass and obey school rules inspired by church beliefs.
Oklahoma and federal law have long specified that charter schools are public schools. State statute requires charter school programs to be non-sectarian and forbids charter schools from affiliation with a religious institution.
Charter schools are subject to most regulations that apply to traditional public schools in Oklahoma, but they have more flexibility with teaching methods and employee hiring.
They are governed by independent boards, though they must contract with a traditional school district, college or university, Native American tribe or a state board that oversees them as a charter authorizer.
Attorneys representing St. Isidore and the Oklahoma Statewide Virtual Charter School Board, which approved the school in 2023, contend charter schools aren’t an arm of the government like traditional public schools.
Rather, they are private entities who contract with the state to provide a public service, like a private hospital, and therefore should be free to adopt a religion, the board and the school’s legal counsel said.
Supporters of the school cited recent rulings from the U.S. Supreme Court that found faith-based private schools can’t be excluded on the basis of religion from receiving government grants or state-funded tuition vouchers.
“The Court has made it clear time and again that you can’t open up a program to private organizations but then say, ‘But we can’t allow religious organizations into that program,’” Phil Sechler, senior counsel at Alliance Defending Freedom, told Oklahoma Voice.
Rejecting St. Isidore because of its Catholic faith is religious discrimination, Sechler said.
Oklahoma Attorney General Gentner Drummond has been the school’s leading opponent, despite it having support from fellow Republican leaders in the state, including Gov. Kevin Stitt and state Superintendent Ryan Walters.
Drummond said before the hearing he isn’t worried the Court’s conservative majority will rule against him.
“I think even conservative people such as myself know how to read the Constitution,” he said.
Charter schools are entwined with the government as public schools, Drummond said, so one becoming religious would violate constitutionally required church-state separation.
“St. Isidore, the charter school, would not exist but for the contract (with the state),” Drummond said. “The school is established by the state. The school can be closed by the state. The school must be open to all, free, subject to substantive oversight, subject to state control. This is not a private contractor.”
The attorney general said allowing a Catholic charter school creates a “slippery slope” to any faith group operating a school with state dollars. Oklahoma taxpayers shouldn’t be forced to finance religious schools that contradict their faiths, he said.
The Oklahoma Supreme Court agreed. The state’s justices found charter schools meet the definition of a “state actor” under two tests the U.S. Supreme Court established.
They decided a charter school is sufficiently entwined with government control and that it provides a “public function” of free public education, a duty the Oklahoma Constitution gives exclusively to the state.
