Oklahoma Supreme Court strikes down state’s religious charter school as unconstitutional

by | Jul 3, 2024

The Oklahoma Supreme Court ruled that the state’s establishment of a religious school violates both the Oklahoma Constitution and U.S. Constitution by “using public money for the establishment of a religious institution.” The court’s ruling emphasized that approving the application to create St. Isidore, a religious virtual charter school, would result in state taxpayers directly funding religious education. Here is an excerpt from the opinion:

St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore’s operations constitutes the use of state funds for the benefit and support of the Catholic church.

Here, there is no question that the State will provide monetary support to teach a Catholic curriculum, and students at St. Isidore will be required to participate in the religious curriculum, both of which [our Court has] disallowed.

That funding would not only violate the Oklahoma constitution’s prohibition on “using public money for the ‘use, benefit or support of a sect or system of religion,’” it would also run afoul of the Establishment Clause of the U.S. Constitution’s First Amendment.  

“Like religious instruction in public schools, the public funding of religion undermines fundamental principles of religious freedom for all,” writes BJC Executive Director Amanda Tyler in a new piece for CNN.com, where she mentions this decision among other more troubling developments in Oklahoma, Texas and Louisiana. “By merging religious and political authority, taxpayer funding of religious schools threatens the rights of people of all faiths and of no faith.”

More from the opinion: 

St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore–all in violation of the Establishment Clause… [which] prohibits public schools from requiring or expecting students to participate in religious activities.

The court rejected the board’s reliance on a trio of recent U.S. Supreme Court decisions on Free Exercise (Carson, Espinoza, and Trinity Lutheran) that bar states from excluding religious institutions from funding programs on the basis of their religious character. Those cases do not apply here, the majority explained, because charter schools are public schools established by state action.

The differences between the Free Exercise Trilogy cases and this case are at the core of what this case entails–what St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State’s creation and funding of a new religious institution violating the Establishment Clause.  Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause.

Even the state’s attorney general, who asked the Oklahoma Supreme Court to step in, warned the Charter School Board last year that approving the application to create St. Isidore would be unlawful state-sponsored religion. The board ignored his advice, making Oklahoma the first state in the nation to establish a religious charter school.

As Tyler wrote for CNN, we can see this decision as some good news in the midst of several troubling developments in this state and others that blur the line between church and state. “As long as the rule of law is maintained, there are still federal and state constitutional guardrails in place to keep this push for theocracy from taking hold.”

Whether the decision will be appealed to the U.S. Supreme Court remains to be seen. This year’s Supreme Court, just now coming to a close, lacked a major church-state case. That may change next year, with this case being one worth watching.