Oklahoma Supreme Court justices seemed split over the idea of a Catholic charter school opening this year during an oral arguments hearing this morning.
Argued for more than an hour by Attorney General Gentner Drummond on one side and attorneys for the Statewide Virtual Charter School board and St. Isidore of Seville Catholic Virtual School on the other, the hearing portended the culmination of months of petitions, amicus briefs and motions regarding what could be the nation’s first religious charter school.
If it opens, the public charter school would use taxpayer funds to teach students a Catholic education, a concept that Drummond warned would pave a slippery slope toward every religion — including the Satanic Temple — having the ability to sponsor charter schools and receive public money.
“I appear today as the state’s chief law officer to defend the separation of church and state, which a state-created and state-funded public religious school would all-but eradicate,” Drummond told the nine Supreme Court justices at the beginning of his argument. “This case is not about exclusion of a religious entity from government aid, which would implicate the free exercise of religion. Rather, it is about the state creation of a religious school which unequivocally establishes religion.”
The SVCSB agreed to sponsor the Catholic charter school in June 2023 and signed a contract with its sponsors in October, something Drummond said violated board members’ oaths of office. Drummond filed a petition Oct. 20 asking the Supreme Court to compel the board to cancel its contract with the school.
“If we ordain this church, if this stands, then this court has effectively authorized a state religion,” Drummond said.
Charter schools are public schools that can be operated by private education management organizations. State statute requires charter schools to be “nonsectarian” and forbids charter school sponsors — such as the SVCSB — from sponsoring “a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.” Drummond pointed to that statute and Article 2, Section 5 of the Oklahoma Constitution as the basis of his argument.
But attorneys for the SVCSB with the national conservative organization Alliance Defending Freedom disagreed, arguing the Catholic charter school does not violate state laws and that those laws could run contrary to the First Amendment. ADF senior counsel Phil Sechler said “religious liberty itself” is at stake with this case at the beginning of his argument.
“The free exercise clause (of the First Amendment) otherwise prohibits the state from using religion as a basis to exclude a group from its public benefit programs,” Sechler told the justices.
Sechler argued that “public school doesn’t mean government” and that recent U.S. Supreme Court cases have set a precedent that prevents states from declining to make public funds available to religious organizations for various programs.
But Drummond argued those cases were different from the St. Isidore issue.
“In this instance, the church and the state are joint venturers,” Drummond said. “Oklahoma has formed a first-in-the-nation actual union of church and state.”
The justices did not make a decision today, but they appear likely to rule before July 1, when St. Isidore is set to begin receiving state funding. Attorneys said about 200 students have applied for enrollment.
After Tuesday’s hearing, Drummond said that if the court rules against him, he will appeal to the U.S. Supreme Court.
Asked the same question, Sechler said, “I have no idea. I don’t know.”
Justices pose questions to both sides
During Tuesday’s oral arguments — which you can view online — justices interrupted both sides’ lawyers at times while they made their arguments, posing hypotheticals and sometimes asking pointed questions.
Justice Dana Kuehn, a Gov. Kevin Stitt appointee, questioned Drummond at length about whether public schools already establish a religion by teaching evolution.
“Do you believe that if a public school, for instance, decides to teach against religion — against certain Biblical thought, whether it’s from evolution to gender or whatnot — do you believe that that’s a public school taking on a stance about religion itself?” Kuehn asked.
Drummond replied that “Oklahoma schools are prohibited to indoctrinate and teach religion.”
Eventually, Kuehn rephrased her question.
“If they are going to begin to expound outside the ABCs and the 123s, is what I would say, would that then open the door (…) where if you’re going to do those things in public schools, you have to then give the option on the other side for parents to have the choice under free exercise if the state is going to establish a stance about being anti-religious?” Kuehn asked. “Do you think that opens the door for even a charter school to have a religious component if the public school has an anti-religious component?”
Drummond said that also could be considered inappropriate.
“I think that if any school were teaching an anti-religious position it would be challenged in court, and this court would say you can’t do that,” Drummond said.
Later, Chief Justice John Kane came back to that line of questioning.
“If there was an atheist virtual charter school that said, ‘We’re not going to teach religion because we believe that religion is a bunch of archaic myths that have nothing to do with the 21st century — could the state legally contract with that entity?” Kuehn asked.
Drummond said the state could not “because it’s indoctrinating.”
“It has a religious philosophy of no religion. It’s not a-religious,” Drummond. “I think it could be broadly defined that atheism is a belief, and if we promote a belief as a state, then it’s a violation of our constitution and our statute.”
Drummond also received some skeptical questions from Vice Chief Justice Dustin Rowe.
“Is your strongest argument Article 2, Section 5 of the Oklahoma Constitution?” Rowe said.
Drummond answered that it was.
Rowe then read the article section, which prohibits public money from going “directly or indirectly” to religious or sectarian institutions.
Rowe and other justices wondered if scholarship programs and school choice tax credits violated that law by “indirectly” funding religious schools. Drummond said tax credits are different.
“The state is providing funds to the student. The student is electing to be at the sectarian school,” Drummond said. “The state is not the creator (of the private schools).”
Other justices seemed skeptical of Sechler’s argument.
Justice Noma Gurich at times appeared to argue with Sechler about whether a charter school is a public school and expressed skepticism toward his interpretation of recent U.S. Supreme Court cases dealing with adjacent issues.
“Where is the choice for taxpayers in Oklahoma not to support the Catholic Church (…) and why would a church want to be subject to public control?” she asked.
When Sechler tried to cite those cases in his answer, Gurich interrupted him.
“But that’s not our case in front of us. That’s a different case. Tell me something that tells us in this case — first in the nation — that somehow the U.S. Supreme Court is going to throw out all establishment law cases and tell us that our establishment clause is not constitutional,” Gurich said. “You think that’s going to happen?”
Sechler responded with examples of Oklahoma cases that allowed public money to flow to private religious organizations.
“I disagree,” Gurich said. “The (St. Isidore) contracts do not follow the (regular) state (charter school) contracts. [The SVCSB] did give them special favors.”
Sechler said the only exceptions in St. Isidore’s contract with the SVCSB dealt with religious liberty.
“Your honor, the board is expecting the act to apply to St. Isidore that it will not unlawfully discriminate. It has agreed to accept all students, whether Catholic or not,” Sechler said.
The SVCSB had to agree to sign a different contract than the one it normally signs with charter schools it sponsors in order to exempt St. Isidore from aspects of the Oklahoma charter school law concerning sectarianism.
For instance, one part of the contract reads:
“In the event of any conflict between the terms of this contract and applicable law, the terms of this contract shall be deemed superseded by the conflicting applicable law; provided, however, that if the charter school is a religious nonprofit organization, the charter school shall be entitled to its religious protections even when in conflict with the applicable law.”
One of part of the “applicable law” mentioned in the contract is a section of the Oklahoma Charter School Act that requires charter schools to be “nonsectarian” and forbids charter school sponsors such as the SVCSB from sponsoring “a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”
Rowe also pushed back on Sechler’s assertions that the state would not be promoting religion by authorizing the school.
“We’re here today because the Catholic Church wants to operate a school and be publicly funded,” Rowe said during questioning.
Sechler responded: “We’re here because the Catholic Church wants to participate in a program.”
Justice: ‘Are we being used as a test case?’
Owing to the First Amendment questions it poses, the case has drawn national attention. Numerous organizations from across the state and country have filed amicus briefs with the court on both sides of the argument.
The case has also highlighted the national network of conservative activists who have been working behind the scenes to reach this point. Some of the groups are funded largely by Federalist Society co-chairman Leonard Leo.
At one point during Tuesday’s proceedings, Justice Yvonne Kauger asked Sechler, “Are we being used as a test case?”
“No, your honor, not at all,” Sechler answered.
“It sure looks like it,” Kauger said.
According to reporting from Politico, the network was largely responsible for the overturning of Roe v. Wade and other recent U.S. Supreme Court conservative decisions via a long-term plan that included getting conservatives appointed to the Supreme Court and then looking across the country for ways to challenge longstanding precedent.
With this case, one of those precedents in the network’s crosshairs involves the concept of separation of church and state, which some conservatives, including Superintendent of Public Instruction Ryan Walters, say is an incorrect doctrine.
But rather than acknowledge the national efforts behind this case, Tyson Langhofer, senior counsel with ADF and director of the ADF Center for Academic Freedom, insisted in an interview with NonDoc that the school will be good for Oklahoma parents if it opens.
“The diocese in Tulsa and Oklahoma City (…) requested this charter. There is a desire from Oklahomans — both at St. Isidore and the students that want to attend there — there’s a desire and demand for this type of school. I think everybody understands that. You’ve seen the rise nationally and in Oklahoma from parents wanting more choice,” Langhofer said. “I think that is consistent with what Oklahomans want, and it might be consistent with what they want nationally, but this is not a national issue. It’s an issue with what Oklahomans are asking for.”
After Tuesday’s hearing, Drummond agreed with Kauger while standing in front of ADF lawyers and staff.
“We are being used as a test case,” Drummond said. “I think the organization behind me is based in Indiana and has been looking for a state that is like Oklahoma — aggressive in every way,” Drummond said. “I think that the expectation of the applicant is that we would approve it like the Statewide Virtual Charter School Board did and that the Supreme Court would grant it. I don’t believe that we’ll go that way.”
Drummond’s case is not the only litigation challenging St. Isidore. In July, 10 plaintiffs filed a lawsuit in Oklahoma County District Court against the school, the SVCSB, the Oklahoma State Department of Education and Walters to try to keep the school from opening.
Those plaintiffs are also represented by a number of national firms, including Americans United for Separation of Church and State, the American Civil Liberties Union, Education Law Center and Freedom From Religion Foundation.
(Update: This article was updated at 11:45 a.m. Monday, April 8, to correct a typo and clarify a comment from Drummond.)
