Defying attorney general, Charter School Board votes to pursue appeal in St. Isidore case

During a tumultuous meeting, the Statewide Charter School Board voted 7-1 on Tuesday to join St. Isidore of Seville Catholic Virtual School in appealing a recent Oklahoma Supreme Court decision to the U.S. Supreme Court.

Minutes later, the board voted 8-1 to table a motion to rescind its contract with the school, despite a standing order to do so from the state court. It also rejected the counsel of the state attorney general’s office on the grounds that as long as the St. Isidore case remains in litigation, a conflict of interest exists because Attorney General Gentner Drummond sued the board’s predecessor over its contract with St. Isidore , which he said violated both the state and U.S. Constitutions.

Just before 5 p.m. Tuesday, Drummond filed a request with the state Supreme Court, asking the court to compel the board to rescind the contract. Drummond asked the court "make clear further refusal to follow" the order "will be grounds for the issuance of a contempt citation." He said he "believes he current has grounds to seek a contempt citation. But in the spirit of comity, Petitioner requests that this Court provide ... the Board and its members one last opportunity to comply with this Court's Order."

"Every day the Oklahoma Statewide Charter School Board refuses to comply with this Court's Order is another day that a state-established religious school persists. That is repugnant to Oklahoma and federal law and must be immediately remediated."

St. Isidore is seeking to become the nation’s first Catholic virtual charter school, and the case is being eyed closely due to its religious overtones and potential for a precedent-setting ruling. Both sides cast themselves Wednesday as protectors of religious liberty.

During the meeting, state schools Superintendent Ryan Walters — a member of the board by virtue of his office — cited recent controversy over an element of the opening ceremonies of the Olympics : “You’ve seen in the last couple of weeks Christianity being mocked on a worldwide stage. … You get a sense of what we’re dealing with here. You see Christian faith, Catholic faith, under assault throughout our country. What we have the ability to do here today is to protect religious liberty, protect options for the families of Oklahoma. I think there are some leaders in the state that have made it very clear they prefer to have atheism championed in our schools and run every other faith out. I think that’s grossly inappropriate.”

Board Chair Brian Shellem echoed those comments.

“I think when we break it down, the contract for the school was to educate kids,” Shellem said. “There are a number of legal theories here. Obviously, the AG had (his) opinion but … I think most of the board feels that … certain groups should not be discriminated against, especially if they have the skills to perform the contract.”

Drummond responded after the meeting with strong words of his own.

“Every Oklahoman should be outraged by the board’s blatant hostility toward religious liberty,” he said. “Rather than acting to protect religious liberty, they are recklessly committed to using our tax dollars to fund radical religious teachings like Sharia law. I will continue to protect the religious liberty of all four million Oklahomans by upholding their constitutional rights.”

A spokesman for the Oklahoma City Archdiocese said it wouldn't have a comment on the board voting to join the appeal.

Chair wants to appeal, but another member says it is out of board's purview

Drummond sued the board’s predecessor, the Statewide Virtual Charter School Board, after that board voted to approve a contract with St. Isidore last October. The state Supreme Court heard oral arguments in the case in April and in June ordered the Statewide Virtual Charter School Board to rescind its contract with St. Isidore. But three days later, at the final meeting before its dissolution, the board failed to take action on the court order. The old board’s legal responsibilities have fallen to the Statewide Charter School Board, which began operating July 1. In two meetings since, the new board also has declined to do so.

In the meantime, St. Isidore has said it will appeal the state court ruling to the U.S. Supreme Court. Although the chair of the previous board, Robert Franklin, expressed the sentiment that such an appeal should be left to St. Isidore and was not the place of a state agency, Shellem — who served alongside Franklin on the old board — disagreed.

“We respectfully disagree with the majority opinion,” Shellem said. “I do want to take up this matter. It is a matter that will not just impact Oklahoma, but will impact our nation. When we look at what has been going on, the fear that seems to be resonating about this notion that there is not a God and that seems to be what the permeating religion is in the public square, I would ask, what are the results?”

The only Statewide Charter School Board member to vote against joining the appeal and tabling the contract was Becky Gooch, the committee staff director and policy director for the office of state Senate President Pro Tempore Greg Treat. Gooch said during the meeting, saying, “This is way outside of our purview.”

Gooch issued a statement after the meeting, through a Senate spokesman: “My votes today were made based on the court’s decision and the rule of law. The Oklahoma Supreme Court issued clear guidance that the board would violate both the Oklahoma and U.S. Constitution’s prohibition against government-established religion if we didn’t rescind this contract. As a woman of faith, and supporter of charter schools, I can empathize with the decision to create alternatives for faith-based education and additional options to traditional education for children who need them. However, I could not in good conscience vote for things that violate the law.”

Board member Jared Buswell abstained from the vote approving the appeal, but said he supported that decision.

Board rejects having attorney general's office as its legal counsel

Drummond said earlier this month his office would assume the role of legal counsel to the board and sent Assistant Attorney General Thomas Schneider to the meeting — along with two armed agents from Drummond’s office. Two uniformed Oklahoma Highway Patrol troopers also were present.

But when Schneider tried to interject at the start of the discussion of the St. Isidore case with legal advice, he immediately was questioned by board member Ben Lepak concerning his credentials to do so, with Lepak noting Drummond had sued the board’s predecessor. Lepak, the executive director of the State Chamber Research Foundation, is the brother of current Oklahoma State Board of Education member Sarah Lepak.

Shellem backed up Ben Lepak. Shellem said he’d consulted “my own personal attorneys” about the matter and was told there is “an ethics conflict.” Shellem refused to reveal the identity of those attorneys after the meeting.

Schneider said, “I believe, as your counsel, that other members of the board are entitled to my guidance today, so I want to make the record to reflect that you are denying me that opportunity.”

Lepak shot back: “We are not denying you anything.”

Schneider, after being shut down by Lepak and Shellem, mostly sat quietly at the board table for the rest of the meeting. He was asked to speak only once after that, when he noted that he’d told the board in a letter before the meeting that an agenda item might be considered legally vague and could result in a violation of the Oklahoma Open Meetings Act . After the meeting, Shellem called that an “intimidation tactic.”

Phil Bacharach, a spokesman for the attorney general’s office, said he couldn’t answer a question about whether the office might look into any such violation.

The board also voted 9-0 to ask the attorney general’s office to hire a private attorney, Daniel Carsey, who previously had represented the Statewide Virtual Charter School Board and provided counsel during the new board’s first meeting. In Drummond’s letter, Drummond said Carsey hadn’t been approved to serve for the new board.

Shellem attempted to turn down the temperature regarding the disagreement with the attorney general’s office afterward.

“We do respect the top law-enforcement agency in the state,” Shellem said. We respect the (Oklahoma) Supreme Court. We will honor their orders. If the Supreme Court had said (to) immediately rescind this contract, the board would have already taken action, but there is a legal process. … We want to let the process play out.”

This article originally appeared on Oklahoman: Defying attorney general, Charter School Board votes to pursue appeal in St. Isidore case