( This story was updated to add new information. )
In separate filings, the Statewide Charter School Board and St. Isidore of Seville Catholic Virtual School have asked the U.S. Supreme Court to review an Oklahoma Supreme Court ruling that the board cannot enter into a contract with St. Isidore, which is seeking to become the nation’s first religious online charter school .
Attorneys from Alliance Defending Freedom, a politically conservative, Christian legal group representing the state board, filed what’s known as a writ of certiorari with the nation's highest court Monday. St. Isidore’s attorneys later made a similar filing Monday.
The case is being watched closely because of its religious overtones and potential for a precedent-setting ruling. A charter school, by law and definition, is considered a public school. Should St. Isidore and the board prevail in their appeal, it would mean public money would flow to a religious school. St. Isidore is operated by the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.
The attorneys for the board and St. Isidore used identical language in their filings in explaining to the U.S. Supreme Court the legal questions the case presents. The first is, they wrote, “Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.”
The second question, attorneys wrote, is “Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking antiestablishment interests that go further than the Establishment Clause requires.”
U.S. Supreme Court Justice Neil Gorsuch had granted attorneys representing both the state board and St. Isidore an extra two weeks from their original September deadlines to make their filings.
Both sides in the case have cast themselves as protectors of religious liberty.
“Oklahoma parents and children are better off with more choices, not fewer. There’s great irony in state officials who claim to be in favor of religious liberty discriminating against St. Isidore because of its Catholic beliefs,” said ADF’s senior counsel, Phil Sechler, who’s represented the state board in the case.
Michael Scaperlanda, the chancellor of the Archdiocese of Oklahoma City and St. Isidore's chairman of the board, echoed those comments.
“Our hope—and a mission of Catholic education—is to serve the whole community by building new learning opportunities so that every child can thrive in a school that suits her own needs,” Scaperlanda said. “Too many children in our state don’t have that chance. We want to help solve that problem by opening a school for children who find the available options unable to meet their needs and who lack the resources to consider other choices.”
Oklahoma Attorney General Gentner Drummond has argued that if St. Isidore prevails, it would open the door to other publicly funded religious charter schools of other faiths.
“I will continue to vigorously defend the religious liberty of all four million Oklahomans,” Drummond said. “This unconstitutional scheme to create the nation’s first state-sponsored religious charter school will open the floodgates and force taxpayers to fund all manner of religious indoctrination, including radical Islam or even the Church of Satan. My fellow Oklahomans can rest assured that I will always fight to protect their God-given rights and uphold the law.”
According to the U.S. Supreme Court, it agrees to hear oral arguments in about 60 to 70 of the 5,000 to 6,000 petitions for a writ of certiorari each term. The court said it takes an average of about six weeks to act on those requests.
Legal case has been ongoing since last October
The Statewide Virtual Charter School Board approved the creation of St. Isidore by a 3-2 vote in October 2023. Drummond quickly filed a lawsuit , saying such an agreement was unconstitutional. The state Supreme Court heard oral arguments in the case on April 2.
The state Supreme Court issued an initial ruling June 25 and ordered the Statewide Virtual Charter School Board to rescind its contract with St. Isidore. But three days later, in the final meeting of that board, board members failed to take action on the court order. The old board’s legal responsibilities now fall to the Statewide Charter School Board, which began operating July 1.
During the first two meetings of the new board, members did not vote to rescind the contract, citing a pending appeal by St. Isidore for a stay of the state court’s ruling. On Aug. 5, the state court denied the appeal . St. Isidore had indicated it would ask the U.S. Supreme Court to review the case, and on July 30, the new board voted to also appeal .
On Aug. 12, the new board voted 8-0 to rescind the contract , provided it will be reinstated if either the state court or the U.S. Supreme Court “reverses, vacates or otherwise nullifies” the state court’s current order. The motion adopted by the board was retroactive to June 25. Drummond has said in court documents he believes the reinstatement portion of the new board’s vote is invalid.
In their filing Monday, the board’s attorneys said the state Supreme Court’s ruling “flouted” U.S. Supreme Court precedents concerning the free exercise of religion. Oklahoma, they wrote, “has encouraged private entities to operate schools, and it has provided those schools funding based on parents’ individual enrollment decisions—so long as the schools parents choose are not religious.
“Such open hostility toward religion … cannot be allowed to stand.”
Attorneys for St. Isidore used similar language in their filing, openly referring to the Oklahoma Supreme Court decision as "wrong." They argue that St. Isidore is a private entity rather than a public one.
"This court has repeatedly held that the Free Exercise Clause prohibits a state from denying generally available benefits to a school solely because it is religious," they wrote. "That principle should have resolved this case."
"Simply put, St. Isidore is a private religious entity that accepted Oklahoma’s invitation to create an innovative school to bring educational diversity and choice through the state’s charter school program. The state did not design that school, it did not create St. Isidore’s religious character, it did not instruct the school to offer an education in the Catholic tradition, and it will not hire or supervise the school’s teachers and administrators. None of what respondentattacks is attributable to the state of Oklahoma."
This article originally appeared on Oklahoman: Oklahoma board, St. Isidore ask US Supreme Court to consider religious charter school case
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