judge disqualified in St. Isidore case
Attorneys on both sides of an Oklahoma County District Court lawsuit seeking to block the creation of St. Isidore of Seville Catholic Virtual School exit Judge Amy Polumbo's courtroom after a hearing on Friday, Jan. 19, 2024. (Bennett Brinkman)

After a short hearing today, the Oklahoma County District Court chief judge for the month of January disqualified the judge presiding over a lawsuit seeking to block a Catholic charter school.

The hearing was the second concerning Judge C. Brent Dishman’s two alleged conflicts of interest in the case filed to block the creation of St. Isidore of Seville Catholic Virtual School, which would likely be the nation’s first religious charter school if it opens.

On the plaintiffs’ side, Dishman’s sister-in-law is a cofounder and member of the controlling body of the Oklahoma Parent Legislative Advocacy Coalition, which is the lead plaintiff of the case.

On the defendants’ side, Dishman is a member of the board of trustees of the College of the Ozarks. The private college recently retained The Alliance Defending Freedom — one of the firms representing the defendants — in a federal lawsuit asking the court to enjoin a Biden administration memo prohibiting colleges from discriminating against students in living spaces on the basis of gender identity or sexual orientation.

The ADF represents the Statewide Virtual Charter School Board, which voted in June to authorize the school.

Dishman had disclosed both potential conflicts to the attorneys in the case. Lawyers for the plaintiffs felt the conflicts were enough to warrant Dishman’s disqualification, and they filed a motion asking him to do so Dec. 1. Lawyers for the defendants opposed the motion, which Dishman denied at a hearing Dec. 21.

Lawyers for the plaintiffs asked for a rehearing before Oklahoma County’s chief district judge, which is Judge Amy Palumbo for the month of January. Palumbo’s decision to disqualify Dishman on Friday is the final step in the question of who will preside over the case, because lawyers are not allowed to appeal decisions that disqualify judges.

“I think it was the right decision, and I’m happy we got it resolved early,” said Kenneth Upton, one of the lawyers for the plaintiffs, after the hearing Friday.

Upton said he did not have any personal issues with Dishman but that he wanted to avoid even the appearance of bias with the case.

“Even if Judge Dishman thought he could make a fair ruling and would follow the law, he was in a no-win situation,” Upton said. “If he ruled for them (people would say), ‘Of course he did, they were your council for your other school.’ If he ruled for us, it would be, ‘Of course you did, your sister-in-law is one of the plaintiffs.'”

Palumbo seemed agree with Upton.

“I think that based off of what I was presented with, that there is potentially a conflict that could arguably arise on both of those issues,” Palumbo said during the hearing.

Lawyers for the defendants, which include the SVCSB, Oklahoma State Department of Education, State Superintendent Ryan Walters and St. Isidore, declined to answer questions after the hearing.

‘It is in some sense starting over’

Judge Richard Ogden has now been assigned the St. Isidore case. Upton said the plaintiffs will likely file an amended petition because of new developments with the proposed school, which will force the defendants to refile their motions to dismiss.

“There’s been a lot of things happen in the case — the board actually entered into a contract for St. Isidore, we’ve got different people on the board now than we did then,” Upton said. “Then once the new motions are filed, we’ll respond, they’ll reply, and it’ll get set for hearing in front of the new judge (…) So it is in some sense starting over.”

Appointed Oct. 27, one of the new SVCSB members is Brian Shellem, a former Edmond mayoral candidate and the president of Advanced Automotive Equipment.

Shellem has also been appointed by Gov. Kevin Stitt to serve on the new Statewide Charter School Board, which the Oklahoma Legislature created last session to replace the SVCSB on July 1. It will become the new board overseeing virtual charter schools and other charter schools.

Shellem said that although he was not a board member when the SVCSB decided to authorize St. Isidore, he supports more educational choices for students, as long as those choices meet the right educational standards and requirements.

“The (St. Isidore) contract is not to provide religious education, it’s to provide education and a curriculum that the state requires, and I don’t think they should be disqualified because they are a Catholic school,” Shellem said. “I equate it to if you go to a car wash and you pay $20 for a car wash and then they go, ‘Hey, we’re gonna give you for free the wheel package and the air freshener,’ and they don’t charge you, [now you’ve got] a $5 value, but we’re not charging you for it. The state’s not contracting them to teach religious education, but it happens to be in that environment. They’re getting contracted to teach the curriculum that’s required by the state.”

Throughout their application process, St. Isidore leaders have indicated that the school intends to provide students with a Catholic education.

Shellem said he believes charter schools are public schools, so he could understand how including the proverbial extra car wash package that is Catholic education could create some legal questions to be dealt with in court.

“I see where the conflict in interpretation is, and hopefully the courts can work that out. I think it could be worked out legislatively as well,” Shellem said.

It is unclear exactly how — or if — the new Statewide Charter School Board will affect litigation targeting the SVCSB, which is named as a defendant in two court cases for its June decision to authorize St. Isidore. When the new board replaces the SVCSB, it will assume responsibility for all schools currently authorized by the SVCSB.

Attorney General Gentner Drummond filed his own petition with the Oklahoma Supreme Court on Oct. 20 seeking to compel the board to cancel its contract with the Catholic charter school. The case has drawn national attention, with education groups across the country filing numerous amici briefs.