Lawsuits target first religious public charter school in U.S.

Nov. 28 (UPI) -- The approval of taxpayer funding for the nation's first religious public charter school has split Oklahoma officials and religious liberty advocacy groups over its constitutionality.

Two lawsuits are seeking to block the creation of the St. Isidore of Seville Catholic Virtual School, a joint venture of the Archdiocese of Oklahoma City and the Diocese of Tulsa designed to provide innovative educational options for underserved populations, especially students in rural areas.

One suit was filed by parents, faith leaders and public education advocates. The other was filed by Oklahoma Attorney General Gentner Drummond, who says the case is not about the school being precluded from receiving a public benefit and there are numerous public funds St. Isidore is eligible to receive, directly or indirectly, as a Catholic private school.

The Oklahoma Statewide Virtual Charter School Board in June approved by a 3-2 vote an application by St. Isidore for charter-school sponsorship. There are other religious schools that receive some funding through public tax dollars, but St. Isidore would be the first to be fully funded this way.

St. Isidore is slated to open in August for the 2024-25 school year.

After the vote, Oklahoma Gov. Kevin Stitt, a Republican, said in a statement he applauded the courage of the virtual charter school board.

"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," Stitt said. "Oklahomans support religious liberty for all and support an increasingly innovative educational system that expands choice."

But the nonprofit Oklahoma Parent Legislative Action Committee and nine individuals allege children would be excluded by discriminatory practices at the online school. They claim the practices violate the Oklahoma Constitution, the state Charter Schools Act and the board's own regulations.

The plaintiffs point out in the suit, filed July 31 in Oklahoma County District Court, that St. Isidore states on its website all students of different faiths or no faith are welcome -- but also says admission "assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school as presented in the handbook."

Under St. Isidore policy, any unlawful discrimination, harassment or retaliation on the basis of a person's race, color, national origin, disability, genetic information, sex, pregnancy within church teaching, biological sex, age, military status or any other protected classes would be strictly prohibited. However, the discrimination, harassment or retaliation also would have to be "inconsistent with Catholic teaching" to be prohibited, the suit says.

St. Isidore's application also says the school will cultivate students to know "human persons are destined for eternal life with the Holy Trinity but that in freedom, an individual may reject God's invitation and by this definitive self-exclusion end up in hell," the lawsuit says.

The Statewide Virtual Charter School Board and its five members, the Oklahoma State Department of Education, the State Superintendent of Public Education Ryan Walters and St. Isidore are named as defendants.

The board, St. Isidore and the Department of Education and Walters have filed three separate motions asking that the suit be dismissed. A hearing on those motions is scheduled for Dec. 21.

'A sea change'

Attorney Alex Luchenitser, of Americans United for Separation of Church and State, one of the organizations representing the plaintiffs, said many other states are waiting to see how the Oklahoma suit is resolved before deciding whether to approve religious charter schools of their own.

"Allowing a religious charter school would really be a sea change to the education system in America because charter schools are public schools and public schools must be nonreligious and serve all students and must not discriminate," Luchenitser said.

"Allowing a public school that's also a religious school that indoctrinates students in religion and discriminates in admissions and employment really subverts and changes the concept of what a public school is."

This effort is part of a similar movement to divert funds away from secular public schools that serve all students, he said.

"The first step was vouchers and similar programs, such as tuition tax credit programs, and the push now is to allow religious charter schools, which would be entitled to full funding from the state," Luchenitser said.

"The vouchers often pay for only part of a private school tuition, but if religious charter schools are allowed, then the entire school is being paid for by the state. That's even more attractive to religious institutions that want public funding for their own religious schools."

In addition to Americans United, the ACLU, Education Law Center and Freedom From Religion Foundation represent the plaintiffs.

Nicole Garnett, a Notre Dame Law School professor, said there are charter schools that offer after-school religious education outside the secular school day and ones that have themes that might appeal to certain religions, such as teaching in Arabic or Hebrew, but they're different from St. Isidore.

She predicts St. Isidore, which is represented by the university's Religious Liberty Clinic, may be the first "but it certainly won't be the last effort to secure permission for a religious charter school."

The Oklahoma Supreme Court has interpreted the state constitution in previous cases to allow the government to engage with private religious organizations to advance public purposes, such as caring for orphans or educating disabled children, Garnett said. She also pointed out that parents, not the state, will decide who goes there.

In addition, Garnett said traditional public schools are operated by the government and the government must be neutral toward religion. But charter schools, regardless of what they're called, are considered private schools under the U.S. Constitution, she said.

And the schools are protected by the First Amendment's Free Exercise Clause but not bound by the Establishment Clause, which prohibits the government from favoring one religion over others, Garnett said.

She cited a 2022 U.S. Supreme Court ruling, Carson vs. Makin, that said Maine violated the right to the free exercise of religion by excluding private religious schools from a tuition aid program because of their religious character. The program pays for students who live in a school district that does not have a public high school to go to a private school.

"That particular case was about a voucher program, not a charter school. But the principle is being applied here," Garnett said.

Alliance Defending Freedom, a nonprofit law firm representing the board defendants, says in its motion to dismiss that St. Isidore's application complies with all applicable laws.

The school certified in the application its intent not to discriminate and to fully comply with all statutes, regulations and requirements of the United States, Oklahoma, the board and the state Department of Education, according to the motion. In addition, students are not required to affirm Catholic beliefs to attend St. Isidore, the motion says.

AG steps in

In December, John O'Connor, then the state's attorney general, said in an official opinion the non-sectarian and non-religious requirements in the Oklahoma Charter Schools Act likely violated the First Amendment's protection of the free exercise of religion and should not be enforced. The opinion was issued at the request of Rebecca Wilkinson, the Statewide Virtual Charter School Board's executive director.

Three board members signed a five-year contract with St. Isidore in October. Drummond, who had withdrawn his predecessor's opinion after taking office, filed suit directly with the Oklahoma Supreme Court seeking cancellation of the contract.

"The board members who approved this contract have violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars," Drummond said in a statement. "As the defender of Oklahoma's religious freedoms, I am prepared to litigate this issue to the United States Supreme Court if that's what is required to protect our constitutional rights."

The attorney general noted Oklahoma voters defeated a proposed amendment in 2016 that would have allowed public money to be used for religious purposes.

Also concerning is that the board's action puts at risk the billion-plus dollars in federal education funds the state gets each year, Drummond said. To get that money, states must ensure compliance with applicable laws, including the Elementary and Secondary Education Act, which prohibits a religious public charter school, he said.

Alliance Defending Freedom filed a brief Nov. 21 asking the Supreme Court to deny Drummond's request, saying the board properly refused to disqualify St. Isidore solely because it is Catholic.

"Decades of U.S. Supreme Court precedent hold that states may not exclude religious groups from public benefits and programs available to secular groups," the brief says.

In the 2022-23 school year, Oklahoma had 32 charter schools educating more than 50,000 students, the brief says. They included 26 physical charters sponsored by public entities and Native American tribes, and six virtual charters sponsored by the board.