BJC urges U.S. Supreme Court to rule nation’s first publicly funded religious charter school unconstitutional

Our nation’s history and tradition of protecting religious liberty for all has long required that the government refrain from engaging in or directly funding religious education.  Reversing course now would “forsake a foundational constitutional commitment,” according to a brief filed with the U.S. Supreme Court by BJC in the case of Oklahoma Statewide Charter School Board v. Drummond.

The Oklahoma Statewide Charter School Board made history against the legal advice of the state’s own attorney general by voting in 2023 to approve the charter school application of a religious school, St. Isidore’s. The Oklahoma Supreme Court agreed with the attorney general and ruled the establishment of publicly funded religious charter schools unconstitutional under both the Oklahoma and Unted States Constitutions.

Now the board has asked the U.S. Supreme Court to step in and reverse that decision, which would make St. Isidore’s the nation’s first religious charter school.

BJC’s brief emphasizes the long historical practice and understanding in the United States that, as the 1786 Virginia Statute for Establishing Religious Freedom penned by Thomas Jefferson states, “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”

The brief explains why this separation is especially important in matters of religious education, which should be undertaken by parents and clergy, not the government.

As stated in the brief:

The Establishment Clause bars the fusion of state power with sectarian authority not because all religious education is coercive, but because once the state adopts it as its own, coercion too easily follows—by structure, if not by design.

BJC goes on to explain to the Court that just as important as the threat of coercion is the threat of religious discrimination, especially in a charter school application context, where the government would pick and choose which applications to accept:

The state cannot fund every religious school that seeks a charter. Every future decision— who gets funded, who gets denied—will drag government deeper into questions it is unfit to answer: What counts as doctrine? What qualifies as a church? Who speaks for a tradition? That is not neutrality. That is religious preference repackaged as educational choice.

Lastly, the brief dispenses with the argument that St. Isidore’s is a private school and thus not subject to Establishment Clause concerns. The school’s public/private status is irrelevant, BJC argues, to the central question of “whether the state may directly sponsor a religious school.” Either way, “the Establishment Clause forbids it.”

“[Charter schools] may get more operational flexibility than traditional public schools but are still accountable to the state,” writes the Rev. Jennifer Hawks of the Cooperative Baptist Fellowship, which joined BJC’s brief. “They cannot charge tuition and cannot be a religious institution. Some in Oklahoma are seeking to eliminate this constitutional parameter.”

This is an extremely important religious liberty case. If the Court holds that states can or even must accept religious schools as charter schools, it would upend decades of Establishment Clause jurisprudence. As the brief says, “The state may not directly fund religious instruction. That line has long preserved both faith and freedom. It should be respected here.”

In addition to Cooperative Baptist Fellowship (CBF), BJC’s brief was joined by the Central Conference of American Rabbis, CBF of Oklahoma, the Evangelical Lutheran Church in America, the United Church of Christ, the Interfaith Alliance, the Most Rev. Sean W. Rowe as Presiding Bishop of the Episcopal Church, the Muslim Public Affairs Council, the National Council of Jewish Women, and the Union for Reform Judaism.

The case is set for oral argument on April 30. Stay tuned.