Oklahoma faces likely legal challenge after board approved first religious charter school in the U.S.

Last week, the Oklahoma Charter School Board approved a Catholic school’s application for charter school funding, making it the first religious charter school in the country and setting the stage for a likely legal battle to determine whether the Oklahoma constitution or the U.S. Constitution allows – or even requires – direct taxpayer funding of religious schools.

The board’s 3-2 vote flatly ignored legal advice from Oklahoma’s own attorney general, Gentner Drummond, who warned that funding a religious charter school would violate state law. He even wrote an op-ed this weekend in The Oklahoman titled “Approval of Catholic charter school drove a stake in the heart of religious liberty.” Here’s an excerpt:

There is no “religious freedom” in compelling Oklahomans to fund religions that may violate their own deeply held beliefs. The framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution clearly understood how best to protect religious freedom: by preventing the state from sponsoring any religion at all.

Oklahoma’s constitution, he explained, requires public schools to be free from “sectarian control;” the state’s charter school law also mandates that all participating schools are to be nonsectarian in its programs and operations.

Drummond issued an earlier statement after the vote, blasting the move:

“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers … It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the State to potential legal action that could be costly.”

Why take an action that is so directly contrary to state law? One reason may be that the U.S. Supreme Court in recent years has methodically cleared the path for religious institutions – including schools – to have greater access to taxpayer funds regardless of state laws barring such funding.

The Court has held that the First Amendment requires a state to include houses of worship in safety-related funding programs (Trinity Lutheran, 2017); that a state’s tax credit program for private school tuition has to include religious school tuition (Espinoza, 2020); and that a state program to fund private school tuition for students in districts without a public high school must include religious schools (Carson, 2022). All three cases involved state laws that barred the funding at issue to protect against taxpayer funding of religion, protections the Court disallowed.

The Oklahoma Charter School Board majority argues that those decisions require it to approve a religious school’s charter school application. But the school funding cases involved private religious schools, not a publicly funded charter school program – an argument that Drummond rightly criticized as a “misuse [of] the concept of religious liberty by employing it as a means to justify state-funded religion.” BJC’s Amanda Tyler noted in her response on Twitter that “funding private religious schools with public dollars violates core legal principles protecting religious freedom for all.”

Following the vote, Americans United announced it may take legal action:

“State and federal law are clear: Charter schools are public schools that must be secular and open to all students. No public-school family should fear that their child will be required by charter schools to take theology classes or be expelled for failing to conform to religious doctrines. And the government should never force anyone to fund religious education. In a country built on the principle of separation of church and state, public schools must never be allowed to become Sunday schools.”

BJC has long supported public education “because public schools support religious liberty for all students.” For more on how public schools protect religious liberty, see this printable handout, BJC’s resource page on Religion in Public Schools, and the recent Respecting Religion podcast.