In a first in the United States, a public religious charter school should receive state funding. Associations for the separation of church and state are up in arms against the project, and the attorney general of Oklahoma has just joined them by filing a lawsuit to overturn the green light given to the creation of school. Much to the governor’s dismay.
Early last June, the Oklahoma Statewide Virtual Charter Board approved by a vote of three to twoa request to obtain a charter for the virtual school St. Isidore of Seville which plans to begin classes in fall 2024 for children from kindergarten to high school.
There were 7 charter schools in the United States for the 847-2021 school year, and their number continues to grow, there were a thousand fewer in 2014-2015. These schools have the particularity of being public and secular educational establishments managed by private associations, which guarantees them a certain autonomy in their educational choices, while being essentially financed by the State. There are around thirty in Oklahoma, but only one has aroused the ire of certain associations and the attorney general (equivalent to the Minister of Justice) of the state.
A validation following recent Supreme Court judgments
Last April, the Oklahoma Statewide Virtual Charter Board had unanimously rejected the request of this Catholic school, believing that public funding would be at odds with the Constitution, the first amendment of which provides that the State cannot intervene in religious matters, neither to establish a religion nor to prohibit it. However, the Archdiocese of Oklahoma City submitted a new, revised request within the 30-day deadline, this time being granted.
In December of last year, Statewide Virtual Charter School Board Executive Director Rebecca Wilkinson asked then-Attorney General John O'Connor's office whether the Board should continue to deny funding to then-religious schools. that the Supreme Court had ruled in cases involving three states that it was unconstitutional to exclude religious organizations from state funding of schools. The minister had issued a notice that Oklahoma's law prohibiting a public charter school from being operated by a religious organization could constitute a violation of the first amendment.
The Attorney General relied on new case law from the Federal Supreme Court which, in various cases, had condemned States for having negatively discriminated against religious schools or the parents of students attending this type of establishment.
In Trinity Lutheran Church of Columbia Inc. v. Comer's ruling in 2017, America's highest court ruled that the state of Missouri's refusal to provide a grant to Trinity Lutheran Church's children's learning center was discriminatory and unconstitutional :
"But the exclusion of Trinity Lutheran [Church] from a public benefit for which it is otherwise qualified, solely because it is a church, is nonetheless odious to our Constitution and cannot be maintained."
As in the St. Isidore of Seville case, the subject concerned the taking of public money to finance a religious denomination.
In two other decisions involving the states of Montana and Maine rendered respectively in 2019 and 2022, the Supreme Court ruled on the one hand that states subsidizing private schools cannot discriminate between them on religious criteria, on the other hand that States are not justified in refusing to subsidize the tuition fees of children enrolled in private establishments offering religious education.
However, opponents of public funding of St. Isidore of Seville dispute this reading of the Supreme Court's rulings. So the Oklahoma Education Association said in a statement that these Supreme Court decisions "are not contextually similar" to the idea of an Oklahoma charter school receiving public funding while also "requiring the "affirmation of particular religious principles and doctrines as a condition of admission". Charter schools are supposed to be open to all students.
The association points out that Section II-5 of the state Constitution prohibits the use of public funds for religious reasons and that Oklahoma voters voted in 2016 against removing the law prohibiting such funding.
Attorney general versus governor, the government is torn over the issue
In July, nine Oklahoma residents and a public school parent advocacy group (OKPLAC) chose to sue, represented by several associations such as the powerful ACLU (American Civil Liberties Union) or the Americans United for Separation of Church and State.
The plaintiffs argue that the school plans to discriminate against students on the basis of religion, sexual orientation or gender identity. They say they may be denied admission, face disciplinary action or be expelled if they or members of their families are LGBTQ+ or have non-Catholic beliefs. They also criticize St. Isidore for its choice to "participate in the Church's mission of evangelization" and criticize the control of the school by the Archdiocese of Oklahoma City when a charter school must be independent of the organization that manages it.
The plaintiffs obtained surprising reinforcement, that of the new attorney general of the state, Gentner Drummond, a Republican. The latter took legal action on October 20 to block the creation and financing of the country's first public religious charter school. The Minister of Justice filed his action in the wake of three members of the Oklahoma Statewide Virtual Charter Board signing the contract with the Catholic school. According to him, this acceptance will open Pandora's box:
“Make no mistake, if the Catholic Church were allowed to have a virtual public charter school, it would result in a situation where the state would be faced with the unprecedented dilemma of processing applications for direct funding from all groups sectarian petitioners."
For his part, Republican Governor Kevin Stitt sharply criticized the attorney general by accusing him of disregarding the constitutional principle of religious freedom:
"This lawsuit is a political coup and goes against Oklahoma values and the law [...] The creation of St. Isidore School is a victory for freedom of religion and education in Oklahoma. We want parents to be able to choose the education that is best for their children, regardless of their income. The state should not stand in the way."