Oklahoma’s debate over state-funded religious school comes before U.S. Supreme Court

OKLAHOMA CITY — An Oklahoma lawsuit coming before the U.S. Supreme Court on Wednesday could produce a landmark ruling on the role of religion in state-funded education.

At the center of the debate is St. Isidore of Seville Catholic Virtual School, a church-backed online charter school that was approved to open in Oklahoma until the state Supreme Court struck it down in June. It would be the first publicly funded charter school in the nation to adopt a religion.

The case questions whether charter schools, long considered public, are truly an arm of the government and whether states should be able to deny a school access to taxpayer funding because it is religious.

The Archdiocese of Oklahoma City and the Diocese of Tulsa sought to open the online school to students of all backgrounds and faiths in Oklahoma, especially in rural areas that have no brick-and-mortar Catholic schools. State dollars would be the school’s primary source of funding.

However, St. Isidore would be unapologetically religious, teaching Catholic beliefs, requiring students to attend Mass and operating according to church doctrine. The archbishop of Oklahoma City and the bishop of Tulsa would choose the members of the school’s governing board.

The Oklahoma Statewide Virtual Charter School Board, which has since dropped the word “virtual” from its name, approved St. Isidore in June 2023 to open as a state-funded entity. 

Attorney General Gentner Drummond asked the Oklahoma Supreme Court to block the school from opening. The state’s highest court ruled in Drummond’s favor, finding the concept of a religious charter school unconstitutional. 

The matter is now in the hands of the U.S. Supreme Court, which announced in January it would consider the case. The Court, whose justices have a conservative majority, will hear oral arguments on Wednesday. A decision is expected by the end of June.

Oklahoma’s educational outcomes are too poor to turn down an institution like the Catholic church that has a history of academic success, said Brian Shellem, who leads the Statewide Charter School Board.

National testing showed Oklahoma was among the lowest-performing states in the country in 2024.

In an interview with Oklahoma Voice, Shellem said the state should take an “all-hands-on-deck approach” to give students better options. The statewide board’s objective, he said, is to encourage innovative school models.

“When we have a tornado come through, we don’t ask for someone’s religious beliefs,” Shellem said. “You just hear the chain saws firing up, the wood starts cutting. People come give food and water and shelter. With this crisis of our education, we need everyone to be chipping in. And when someone raises their hand and says, ‘We are willing, and we are able,’ should we say, ‘There’s the door’? Or (do) we say, ‘You obviously have a (strong) track record. Thank you for helping.’”

Introducing religion into public education doesn’t solve Oklahoma’s poor outcomes, said Drummond, the attorney general.

Drummond, who is running for Oklahoma governor, said the Catholic charter school would be “a new, shiny thing” but a distraction from making genuine improvements to reading and math levels. He said it could draw public funds away from existing school districts and hurt their performance.

Gov. Kevin Stitt and the head of Oklahoma’s public schools system, Superintendent Ryan Walters, have advocated for opening St. Isidore to expand educational options in the state. Both filed friend-of-the-court briefs for the U.S. Supreme Court to consider as it weighs its decision.

Drummond has been the school’s leading opponent. Allowing a state-funded charter school to adopt a faith “eviscerates” the state and federal Constitution’s prohibition of government-established religion, he told the state Supreme Court during oral arguments last year.

A ruling in favor of the Catholic school could upend charter programs across the country and open the door to schools adopting faith systems that Oklahomans might find objectionable, Drummond said.

“It’s a recipe for chaos and confusion for millions of charter school students, and that is a tragedy,” he told Oklahoma Voice. “I think it would create a patchwork, truly. You would probably have large states like New York, Colorado, California, discontinuing its charter school program because those states probably won’t tolerate the funding of sectarian education. A ruling against me, the state, would subject religious institutions to state regulations of which they’re typically immune.”

The crux of the case, both sides say, is who creates and controls a charter school. 

A charter school is only established in partnership with the state and is subject to regulations that apply to all public schools, therefore making it inextricably tied to the government and subject to church-state separation, the attorney general said.

Attorneys representing St. Isidore and the statewide board say creation and control of a charter school lie with its independent governing board, not the state. They equated charter schools to private institutions that are paid taxpayer funds to provide public services, like a church-affiliated hospital or construction companies hired to build city roads.

Similarly, charter schools are privately run entities contracted with the state, said Phil Sechler, senior counsel at Alliance Defending Freedom, a national conservative Christian legal group representing the statewide board.

Those private entities have a right to religious liberty, he said, so excluding them from public funding is religious discrimination. 

Previous Supreme Court rulings found religious groups cannot be excluded from government grants and school voucher programs. Permitting a religious charter school, though, would set a new precedent.

“The Statewide Charter School Board is treating St. Isidore exactly as the Constitution demands — neutrally,” Sechler said. “It’s not promoting religion. It’s not disfavoring it or being hostile to it.

“St. Isidore is simply trying not to be discriminated against because of its faith.”

Alliance Defending Freedom has been involved in other landmark cases, including the Mississippi lawsuit that resulted in the nation’s highest court overturning Roe v. Wade.

The nonprofit group is representing the Statewide Charter School Board for free, Sechler and Shellem said. Its chief legal counsel, Jim Campbell, will present oral arguments to the Supreme Court.

Michael H. McGinley of Dechert LLP will represent St. Isidore.

The Attorney General’s Office hired Washington, D.C., attorney Gregory Garre to represent Drummond at a cost of $250,000, according to the AG’s contract with Garre’s law firm, Latham & Watkins LLP.

If approved, St. Isidore would be open to students of all backgrounds and faiths, Catholic officials have said. Its contract with the Statewide Charter School Board pledged it would not deny students admission based on their religion, lack of faith, sexual orientation, gender identity or gender expression.

Guiding principles for Oklahoma Catholic schools disagree with the concept of a gender identity that doesn’t match a person’s biological sex, according to guidance the Oklahoma City archdiocese and the Tulsa diocese released in 2021.

However, Catholic schools must ensure “the immeasurable dignity of every child is protected and respected,” the principles state.

All Catholic school students, including those who are LGBTQ+, are treated with human dignity and respect, said Michael Scaperlanda, chancellor of the Oklahoma City archdiocese.

“I think because the Catholic Church believes in the dignity of every human person, we respect the dignity of whoever comes to our school, whoever chooses to come to our school, and respect their freedom to either accept or reject or be curious about the Catholic faith,” Scaperlanda said. “That’s up to them.”

St. Isidore received more than 225 expressions of interest from students wishing to enroll, even with multiple lawsuits hanging over the school, Scaperlanda said. The archdiocese has stated its goal is to enroll up to 500 students in St. Isidore’s first year of operation.

Most of the families expressing interest came from rural areas, and only two attend a Catholic school currently, Scaperlanda said.

The idea for a virtual school had its genesis during the COVID-19 pandemic, Scaperlanda said, when Oklahoma Catholic schools pivoted to online instruction in March 2020. Catholic officials discovered “we could do this sort of education and do it very quickly and very well.”

An online school could make Catholic education available across the state, he said, and as a charter school, it could do so at no cost to families. 

Scaperlanda said Catholic leaders saw other private groups accessing charter school funding and wondered, “Why should we be left out of that?”

“If the state wants to provide these opportunities, it’s discriminatory to say, ‘Chickasaws, you can do this. STEM-minded folks, you can do this. All kinds of other folks can participate in this educational space, but religious groups can’t,’” he said.

It’s no surprise a publicly funded religious school emerged from Oklahoma, considered one of the most predominantly Republican states in the country, said House Minority Leader Cyndi Munson, D-Oklahoma City.

In her 15 years in the state Legislature, Munson has seen the GOP supermajority enact a variety of policies inspired by lawmakers’ religious faith — from a near-total abortion ban to a recent House resolution proclaiming “Christ is King.” 

Walters, who leads the Oklahoma State Department of Education, has ordered schools to teach from the Bible and keep a copy of it in every classroom.

Republican lawmakers, afraid of being challenged in a primary election, are “very nervous about standing up and just having real conversations around the separation of church and state,” said Munson, a Democratic candidate for governor.

She said that mindset, along with gerrymandering and straight-party voting, has distanced conservative elected officials from the wishes of Oklahoma voters. Her constituents, despite choosing a private religious education for their children, told her these efforts are “not what we want our government leaders working on.”

“I represent a district that is predominantly Republican and, I would say, religious,” Munson said. “I have Catholics, churches in my district, pretty well-known affluent ones. And they say, ‘This is not what we want in our public schools.’”