charter school opinion
Oklahoma Attorney General General Gentner Drummond sent a letter to Statewide Virtual Charter School Board executive director Rebecca Wilkinson withdrawing his predecessor's opinion on charter school operators Thursday, Feb. 23, 2023. (Provided)

Oklahoma Attorney General Gentner Drummond has withdrawn his predecessor’s advisory opinion concerning the legality of religious charter school operators, potentially affecting the status of the Archdiocese of Oklahoma City’s application to form a virtual Catholic charter school and further portending a future court battle.

Former Attorney General John O’Connor had issued an opinion in December arguing that the section of Oklahoma’s charter school law requiring charter school operators to be nonreligious and nonsectarian is unconstitutional.

But Drummond disagreed, saying in a press release Thursday that O’Connor “incorrectly concluded that Oklahoma taxpayer dollars could be tapped to fund religious charter schools.”

“Religious liberty is one of our most fundamental freedoms,” Drummond said. “It allows us to worship according to our faith, and to be free from any duty that may conflict with our faith. The opinion as issued by my predecessor misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”

Charter schools are public schools that can be privately run. O’Connor, in his opinion, cited three recent U.S. Supreme Court cases to conclude that private entities operating charter schools could be religious organizations, meaning they would receive state funds to operate the schools.

O’Connor’s opinion came in response to a request from Statewide Virtual Charter School Board executive director Rebecca Wilkinson asking about the legality of religious organizations running virtual charter schools.

Drummond, however, wrote a letter to Wilkinson (embedded below) stating he had withdrawn the opinion because the Supreme Court cases concerned private schools and therefore “have little precedential value as it relates to charter schools.”

“This office recognizes that the law is currently unsettled as to whether charter schools are state actors,” Drummond wrote. “I am hopeful that the U.S. Supreme Court will definitively rule on this unsettled issue next term.”

Stitt, O’Connor react to Drummond’s decision

Asked about the issue during a press availability Friday, Gov. Kevin Stitt, who praised O’Connor’s opinion in December, said he disagrees with Drummond’s decision.

“Am I supportive of the Catholics choosing and going out and setting up a Catholic charter school? 100 percent,” Stitt said. “I think that’s great. Just like if the Jewish community wants to set up a charter school, or the Muslim community. I’ve got friends across all walks of faith. I have no problem with that whatsoever.”

In the announcement of his withdrawal, Drummond encouraged the Statewide Virtual Charter School Board to deny the Archdiocese of Oklahoma City’s application for a Catholic virtual charter school, but Stitt disagreed.

“I disagree with it for all the reasons I just said,” Stitt noted. “But his job is to interpret what he believes the law is and issue those kinds of opinions, just like it was John O’Connor’s job when he was attorney general.”

Stitt also expanded on his argument with parental choice rhetoric.

“I believe that kids belong to parents and not the government, so if parents are wanting to teach their children certain beliefs and they are passing on their faith to their children, I think that has been happening since the beginning of time, and I am very supportive of it,” Stitt said.

After a brief Friday meeting of the Oklahoma Veterans Commission — for whom he serves as contracted counsel — O’Connor also offered comment on Drummond’s decision, emphasizing that while attorney general opinions are generally binding until a court decision, they are considered only advisory when they concern a state statute.

“I don’t understand why (Drummond withdrew the opinion) because my opinion — or his withdrawal of my opinion — [is] advisory, and we would expect that this will wind up in a decision by a court, which is where it should wind up,” O’Connor said. “And so the withdrawal of an opinion seems unnecessary.”

O’Connor also used parental choice arguments in his comments on Drummond’s decision.

“The travesty here is that while this is going on, some kids are locked in underperforming public schools — that presumably charters would bring a higher level of education to them and give them better prospects for their futures,” O’Connor said. “So it’s disgusting to me that while all these adults are treating this as an issue conceptually, the kids are being deprived, and they’re getting through our school system unprepared for college or the workforce.”

As “these adults” continue to debate the issue, the Statewide Virtual Charter School Board is currently considering an application for a virtual Catholic charter school which would be run jointly by the Archdiocese of Oklahoma City and the Diocese of Tulsa.

In their presentation to the board at a meeting Feb. 14, the applicants were open about their plans to teach the Catholic faith in their proposed school.

Reached Friday, Catholic Conference of Oklahoma executive director Brett Farley, who praised O’Connor’s opinion in December, said his organization is withholding comment while they review Drummond’s decision.

In the meantime, Drummond encouraged members of the SVCSB to vote against the application.

“While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the (…) application will compel approval of similar applications by all faiths,” Drummond wrote. “I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”

Read Drummond’s full withdrawal letter

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