Can a Charter School Be a Religious School?
The Oklahoma Supreme Court was the setting for an April 2 case that is likely the next school choice question to make its way to the U.S. Supreme Court. The case is Drummond v Oklahoma Virtual Charter School Board and considers whether the State of Oklahoma can use public dollars to fund a state-wide online Catholic charter school.
Oklahoma Attorney General Gentner Drummond told the state Supreme Court that he sued to stop the Oklahoma Virtual Charter School Board from allowing a religious charter school to open “to defend the separation of church and state,” according to . The notion of “separation of church and state” has been the most common to thwart these and other types of school choice programs that include religious schools.
U.S. Supreme Court Rulings
Since 2017, three U.S. Supreme Court decisions have considered the separation issue and the circumstances under which taxpayer dollars can be used to provide financial aid to religious institutions, including K-12 religious schools. University of Dayton education law expert Charles J. Russo in an April 2023 article in America that these rulings open "more ways for public dollars to support faith-based education." But federal constitutional questions remain. The Drummond case is an example of how one of those issues—the state action doctrine—has divided school choice supporters in the religious school community from those in the charter school community.
The first case in the trilogy of U.S. Supreme Court cases is , decided in 2017. Officials in Missouri denied the benefit of state funding to Trinity Lutheran Church Child Learning Center preschool program in Columbia, Missouri, for a playground resurfacing program. The Court 7 to 2 that this was unconstitutional because it violated the First Amendment's free exercise of religion clause as the state could not deny a public benefit to an otherwise eligible institution solely because it was religious. Chief Justice John Roberts , “The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.”
The second case was , decided in 2020. Montana passed a tax-credit scholarship program that allowed individuals and businesses to contribute to non-profit scholarship organizations that would award scholarships to low-income families to pay for private schools. However, the state Department of Revenue promulgated an administrative rule prohibiting scholarship recipients from using their scholarships at religious schools. The Court ruled 5 to 4 that this prohibition violated the First Amendment's free exercise of religion clause. Chief Justice John Roberts “A state need not subsidize private education [but] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
The third case was , decided in 2022. It involved the state of Maine and a 1981 law that excluded religious schools from a tuition program enacted in 1873 that paid for students to attend private high schools since many rural communities in Maine do not have high schools. Before 1981, the tuition program was used to send children to religious schools. The Court ruled 6 to 3 that this approach was unconstitutional because it was equivalent to religious discrimination. Justice Roberts , “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion [as it] exclude[s] some members of the community from an otherwise generally available public benefit because of their religious exercise.”
The Oklahoma Case
The Oklahoma Virtual Charter School approved plans for an online or virtual religious K-12 charter school open to students across the state that would be paid for using taxpayer dollars (like all other charter schools) and run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa. This approval was based on a 15-page single-spaced of Oklahoma Republican Attorney General John M. O’Connor’s legal interpretation of the Trinity Lutheran, Espinoza, and Carson decisions.
O’Connor was succeeded by Republican Gentner Drummond in January 2023 who proceeded to his predecessor’s opinion. He filed a in October against the Virtual Charter School Board that charter schools are state actors and therefore must be secular. None of the three U.S. Supreme Court cases discussed here clearly resolve this issue. Drummond v. Oklahoma Virtual Charter School Board asks whether states with secular public charter schools—public schools that are privately operated but publicly funded—can also allow religious private charter schools.
The answer depends on the , a legal concept that limits the Constitution's "equal protection of the laws" to state action, not private action. If, for federal constitutional purposes, charter schools "are private, then…prohibitions on charter schools being religious are unconstitutional. But if they are public—that is, 'state actors'—then the First Amendment's Establishment Clause likely requires that they be secular," Notre Dame Law Professor Nicolle Stelle Garnett in a City Journal article.
School choice supporters are of two opposing positions on this issue. For example, Professor Garnett argues that charter schools are not state actors for federal constitutional purposes. However, the National Alliance for Public Charter Schools disagrees and that "Charter schools are public schools and are state actors for the purposes of protecting students' federal constitutional rights."
In the recent April arguments before the state Supreme Court, reports Drummond argued that “This case is not about the exclusion of a religious entity from government aid, which implicates the Free Exercise of Religion, Rather, it is about the state creation of a religious school which unequivocally establishes religion.”
In an interview with , Counsel for the School Board Philip A. Sechler with the Alliance for Defending Freedom commented, "The attorney general is taking the position that the board’s, our client’s, sponsorship of St. Isidore should be canceled because they’re Catholic. The [U.S.] Supreme Court has made it clear in a number of cases recently that you can’t treat religious groups as second-class citizens. The attorney general’s view is diametrically opposed to the point of the law.” The Court took the case under advisement and did not say when it would rule. St. Isidore’s contract is scheduled to take effect on July 1.
Meanwhile, the Oklahoma County District Court is considering a against St. Isidore. This one was brought by parents, faith leaders, and other education advocates under the Oklahoma Parent Legislative Action Committee. It is represented by local attorneys and other organizations, including the American Civil Liberties Union and Americans United for Separation of Church and State. It raises many of the same issues but includes other issues like non-discrimination regulations other public schools must follow but St. Isidore would be exempt from following.
In addition to these legal questions, a religious charter school model raises some prudential questions for Catholic and other religious schools. As Kathleen Porter-Magee, the superintendent of Partnership Schools, a private network of urban Catholic elementary schools, in America, "The most obvious reason for caution is the threat to religious liberty…blurring the line between public and private schools…could invite far more government control over what it means to teach the faith than the church wants."
Recent U.S. Supreme Court decisions have clarified the ways in which public dollars can be used to support religious schools. But the Court will likely be called upon soon to clarify the next school choice frontier.
