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Supreme Court invalidates St. Isidore charter school, Catholic charter school unconstitutional
Oklahoma Attorney General Gentner Drummond shakes hands with Alliance Defending Freedom attorney Phil Sechler ahead of oral arguments before the Oklahoma Supreme Court on Tuesday, April 2, 2024. (Tres Savage)

Students who signed up to attend St. Isidore of Seville Catholic Virtual School this fall will have to enroll elsewhere following an Oklahoma Supreme Court ruling today that held the proposed religious charter school’s contract violated the Oklahoma Constitution and the U.S. Constitution.

“There is no question that St. Isidore is a sectarian institution and will be sectarian in its programs and operations,” Justice James Winchester wrote in the majority opinion. “The charter school board had to alter various terms of the model contract to draft the St. Isidore contract, allowing it to operate as a religious charter school. However, in changing the various terms of the model contract, the St. Isidore contract violates the plain language of the [Oklahoma Charter School Act] and the Oklahoma Constitution.”

Winchester was joined in his opinion by five other justices: Yvonne Kauger, Noma Gurich, James Edmondson, Douglas Combs and Richard Darby. Chief Justice M. John Kane IV recused without offering explanation, although he said he is Catholic and a member of the Knights of Columbus on his Judicial Nominating Commission application. Justice Dustin Rowe concurred in part and dissented in part, while Justice Dana Kuehn dissented.

Oklahoma Attorney General Gentner Drummond filed the lawsuit asking the state Supreme Court to declare the Catholic charter school’s contract from the Statewide Virtual Charter School Board to be unconstitutional. After oral arguments on the case in April, attorneys for the school and the board declined to say whether they would ask the U.S. Supreme Court to review an unfavorable decision by the state Supreme Court.

Drummond said he would have appealed to the federal bench had he not prevailed, but that is unnecessary after today’s ruling. In a statement, he did not mention the Catholic Church, instead referencing “Sharia Law” and “Satanism” as other doctrines that could have used St. Isidore’s precedent to launch their own religious schools.

“This decision is a tremendous victory for religious liberty,” Drummond said. “The framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution clearly understood how best to protect religious freedom: by preventing the state from sponsoring any religion at all. Now Oklahomans can be assured that our tax dollars will not fund the teachings of Sharia Law or even Satanism. While I understand that the governor and other politicians are disappointed with this outcome, I hope that the people of Oklahoma can rejoice that they will not be compelled to fund radical religious schools that violate their faith.”

In his opinion, Winchester ruled that St. Isidore’s contract violated two sections of the Oklahoma Constitution: Article 2, Section 5, which prohibits public money from going to religious institutions; and Article 1, Section 5, which mandates that public schools, including charter schools, be nonsectarian. Winchester also referenced the Oklahoma Charter School Act to make the argument that charter schools are public schools.

“There is no question that the state will provide monetary support to teach a Catholic curriculum, and students at St. Isidore will be required to participate in the religious curriculum,” Winchester wrote. “The funding will go directly to St. Isidore, dissimilar from giving scholarship funds to parents (…). The state will be directly funding a religious school and encouraging students to attend it.”

In a joint statement, OKC Archbishop Paul Coakley and Tulsa Bishop David Konderla said they would “consider all legal options” following the ruling.

“Today’s ruling is very disappointing for the hundreds of prospective students and their families from across the state of Oklahoma who desired the educational experience and promise of St. Isidore of Seville Catholic Virtual School,” Coakley and Konderla said. “We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race or faith backgrounds.”

Gov. Kevin Stitt also released a statement expressing disappointment in the ruling.

“I’m concerned we’ve sent a troubling message that religious groups are second-class participants in our education system. Charter schools are incredibly popular in Oklahoma — and all we’re saying is: We can’t choose who gets state dollars based on a private entity’s religious status,” Stitt said. “Religious freedom is foundational to our values, and today’s decision undermines that freedom and restricts the choices available to Oklahomans. I’m disappointed by AG Drummond’s attack on religious liberty and the school choice movement, but I remain hopeful the U.S. Supreme Court will hear the case and grant St. Isidore the right to establish their school.”

Background on St. Isidore Catholic charter school proposal

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.”

St. Isidore began its path to opening at the beginning of 2023. Following an opinion by outgoing Attorney General John O’Connor referencing three recent U.S. Supreme Court decisions to argue that the “nonsectarian” clause of state statute violates the free exercise clause of the First Amendment, the Archdiocese of Oklahoma City and the Diocese of Tulsa jointly submitted a sponsorship application to the SVCSB to open a Catholic virtual charter school.

But after Drummond took office, he withdrew O’Connor’s opinion, calling it incorrect but noting that “the law is currently unsettled” regarding religious charter schools.

In June 2023, the SVCSB voted 3-2 to sponsor the school, and the two entities signed a charter contract in October. After that, Drummond filed his suit with the state Supreme Court, asking the justices to compel the board to cancel its contract with the school.

In a nod to the case’s national implications, a slew of organizations across the country and across ideological divides quickly files amicus briefs for the justices to consider.

In April, Drummond and lawyers for St. Isidore and the SVCSB argued before the Supreme Court justices for more than an hour.

“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.”

At the time, justices seemed split about the idea of a religious charter school, with some asking if public schools already take a religious position by teaching evolution and others wondering if Oklahoma was being “used as a test” case.

Tuesday’s ruling, however, indicated that the justices largely agreed that the Oklahoma Constitution prohibits the type of public school sought to be operated by the Catholic Church. In the majority opinion supported by five other justices, Winchester also explained how the school would violate the U.S. Constitution’s Establishment Clause.

“Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore’s educational philosophy is to establish and operate the school as a Catholic school,” Winchester wrote. “St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state sending in direct support of the religious curriculum and activities within St. Isidore — all in violation of the Establishment Clause.”

In a separate writing, Justice Dustin Rowe agreed with the court’s majority that the St. Isidore charter school contract violated the Oklahoma Constitution, but he dissented on the question of violating the U.S. Constitution’s establishment and free exercise clauses.

In a full dissent, Justice Dana Kuehn wrote that she believes charter schools are not state actors.

“By allowing St. Isidore to operate a virtual charter school, the state would not be establishing, aiding, or favoring any particular religious organization,” Kuehn wrote. “To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”

But Winchester concluded that the question at hand involved the state’s sponsorship of religion, not the state excluding a religious entity from participating in a state program, as St. Isidore attorneys had argued.

“Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian,” Winchester wrote. “However, St. Isidore [would] evangelize the Catholic faith as part of its school curriculum while sponsored by the state.”

Read the majority opinion from Justice James Winchester

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(Update: This article was updated at 1:50 p.m. Tuesday, June 25, to include additional comments.)