The Oklahoma Supreme Court on Tuesday ruled against a state-funded Catholic charter school in a case testing the wall of separation between church and state.
In a majority decision, the court blocked the St. Isidore of Seville Catholic Virtual School and ordered the state to rescind its contract with the school. Six justices agreed; two dissented all or in part.
The case is likely to be appealed to the U.S. Supreme Court, whose conservative majority has expanded the allowed uses of taxpayer dollars to religious schools.
The Archdiocese of Oklahoma City and Diocese of Tulsa proposed St. Isidore, named after the patron saint of the internet, as an avenue to make free Catholic education accessible across the state. The Statewide Virtual Charter School Board approved the school in 2023, drawing a legal challenge from the state attorney general's office.
The Statewide Virtual Charter School Board met Monday for the last time; starting July 1, the newly created Statewide Charter School Board will oversee all online charter schools and some traditional charter schools. Phil Bacharach, a spokesman for the attorney general's office, said the court’s ruling shouldn’t require a board vote.
“We read the opinion as declaring the contract to be null and void because it’s unconstitutional,” Bacharach said. “We expect the board and other officers of this state to follow the orders of the Oklahoma Supreme Court.”
The court’s decision prevents St. Isidore from receiving state funding on July 1.
Attorneys representing the school are likely to appeal to the U.S. Supreme Court. Four justices have to agree to hear it for the case to be taken up.
Law professors from across the country said there’s a good chance the court will consider the case.
Several said the court might first wait to see if other states resolve similar cases. If a dispute emerges among state courts over federal law, the Supreme Court is more likely to accept the petition.
“If you have only one state, they tend to let it lie,” Willamette University Professor of Law Steven Green said.
University of South Carolina Professor of Law Derek W. Black said because the case is centered around the much larger question of whether a charter school is truly a public school, it ventures into state law.
“I don’t think it’s an attractive case (to the U.S. Supreme Court),” Black said.
Black cited a similar case the U.S. Supreme Court declined to take up: Peltier v. Charter Day School, in which a North Carolina charter school argued that it wasn’t a public school and could therefore treat students differently on the basis of sex at its own discretion.
“In a lot of ways, the Oklahoma case is a perfect mirror of the legal issues,” Black said.
Are charter schools public or private?
St. Isidore applied to become a charter school, a type of school that is publicly funded but privately run. Whether charter schools are public or private is one of the major arguments in the case.
St. Isidore’s attorneys argued that charter schools are actually private schools and that denying access to government funding violates the First Amendment’s free exercise clause. To bolster that, they pointed to a 2017 U.S. Supreme Court decision in which a Missouri day care was denied a public grant for its playground because it’s operated by a church.
Green said that case, Trinity Lutheran, along with a decision in a Montana case over private school tax credits, show the Supreme Court’s willingness to crack the door for taxpayer funding to religious groups.
“This was a real 180 from what has been traditionally understood about the separation of church and state,” Green said.
Attorneys for St. Isidore and the Statewide Virtual Charter School Board argued similarities in two Oklahoma cases: a 1946 case about an orphanage for Native American children and a 2016 case over the state’s Lindsey Nicole Henry Scholarship program for students with disabilities. But the court noted differences.
The orphanage was operated by a religious entity, but the children were not required to attend church services and were free to choose how they worship. In the Lindsey Nicole Henry case, the funding was spent on religious instruction, but was given first to parents as a scholarship, not directly to the schools.
With St. Isidore, the state would be directly funding a religious school and encouraging students to attend it, the justices wrote. And St. Isidore is more than a religious entity unaffiliated with the state, like with the orphanage and the schools that accept Lindsey Nicole Henry scholarships. St. Isidore, as a public charter school, is a governmental entity and state actor, they found.
Political ramifications
The St. Isidore decision could accelerate efforts by the Republican supermajority at the Oklahoma Legislature to change the composition of the state Supreme Court.
Both dissenting justices are Gov. Kevin Stitt’s appointees: Dana Kuehn and Vice Chief Justice Dustin Rowe (Stitt also appointed Chief Justice John Kane, who recused.)
Andrew Spiropoulos, a professor of law at Oklahoma City University, said that’s likely to fuel a push by conservatives to reform how Supreme Court justices are selected in Oklahoma.
“They’re going to use this as one more reason why we need to change the way we do things in Oklahoma,” he said.
Some Republicans and business groups have tried for years to get rid of the Judicial Nomination Commission, formed after the Supreme Court corruption scandal in the 1960s. The commission, made up of attorneys and laypersons, vets nominees for judicial positions and forwards three nominees to the governor for the final decision on judicial vacancies.
Among the proposed legislation this year was a bill putting age limits on appellate and district court judges. Another proposal, in the form of a state question, would have made state appellate judges directly appointed by the governor, with confirmation by the Senate and House. Neither of those efforts were successful in this year’s legislative session.
Contributing: Oklahoma Watch reporters Paul Monies and Ruby Topalian
Oklahoma Watch, at oklahomawatch.org, is a nonprofit, nonpartisan news organization that covers public-policy issues facing the state.
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