The decision will likely ignite a fierce legal battle over church/state separation

Today, nearly two months after Oklahoma's Statewide Virtual Charter School Board voted unanimously to “disapprove” an application from St. Isidore of Seville Virtual Catholic Charter School, the same board voted 3-2 in favor of moving forward with the school.

One of the “Yes” votes came from a new member of the board, Brian Bobek, appointed Friday, by Republican House Speaker Charles McCall. (At the beginning of the meeting, Bobek was asked by the board’s chair to abstain from the vote to “avoid the appearance of political manipulation,” but that was obviously never going to happen; Bobek was arguably installed so he could be the deciding vote.)

Despite the board’s lawyers openly saying this could raise legal problems, the state has now given a green light for the creation of the first taxpayer-funded religious charter school in the country, and one church/state separation group has already announced plans to file a lawsuit before conservative legal groups run rampant attempting to establish similar taxpayer-funded indoctrination camps in other places.

The problems with a taxpayer-funded Catholic school

Unlike public schools, this Catholic school would not require teachers to be certified, would not have to accept openly LGBTQ teachers, and would explicitly promote Catholic doctrine during school hours. There’s also the possibility that students who become pregnant could get expelled—along with trans students just for existing—and that sex education would be omitted from the curriculum. In addition, this kind of school wouldn’t have the resources to take on special needs students. (“That is something we will need to develop,” said Lara Schuler, senior director of Catholic education at the Archdiocese of Oklahoma City, during a presentation in February.)

All the while, taxpayers would be footing the bill.

Earlier this year, Brett Farley, the executive director of the Catholic Conference of Oklahoma, refused to address any of those concerns. He said that those were all hypothetical situations that he couldn’t speak to since there were no actual cases in front of him… even though Catholic doctrine has no problem addressing hypothetical sins.

The proposed K-12 school would theoretically help Catholics in rural parts of Oklahoma obtain a faith-based education. The Supreme Court has already said that if taxpayer dollars are available for general programs, an institution can’t be excluded from consideration just because it’s religious. The Catholic Church used that argument to justify the creation of this charter school.

By doing so, they fully ignored the will of Oklahoma’s voters who rejected a 2016 ballot measure that would have repealed the Blaine Amendment—the part of the State Constitution that bans public money being used for religious purposes. (They rejected that measure on the same night Donald Trump was elected.)
What Oklahoma’s attorneys general have said about the Catholic school

But it’s not like the Catholic Church was acting on its own here. They had the support of the former execution-obsessed state attorney general John O’Connor, who wrote in a (non-binding) opinion last December that everything would be fine if the state approved the charter school:

But late last year before leaving office, then-Oklahoma Attorney General John O’Connor issued an advisory opinion that the state’s current ban on publicly funded charter schools being operated by sectarian and religious organizations could be a violation of the U.S. Constitution’s First Amendment “and therefore should not be enforced.”

That was the legal defense now being exploited by the Catholics behind this school.

After O’Connor issued his advisory opinion, Americans United for Separation of Church and State urged the Oklahoma Statewide Virtual Charter School Board to disregard everything he said:

At heart, the AG opinion misunderstands the nature of charter schools. “Reclassifying charter schools as private actors would be a sea change in the law that would upend the entire educational landscape in Oklahoma. It has always been the understanding of lawmakers, the government, and charter schools themselves that they are public schools and subject to the U.S. Constitution,” AU’s letter explains. AU also notes that a 2007 Oklahoma Attorney General opinion affirmed that charter schools are “part of the public school system.”

That sentiment was echoed by the State Superintendent of Public Instruction Ryan Walters, a Christian Nationalist. Gov. Kevin Stitt also supported the proposal.

For what it’s worth, Attorney General Gentner Drummond, the Republican who defeated O’Connor in the 2022 primary and later won the general election, took AU’s side on this one. In February, Drummond formally withdrew O’Connor’s opinion:

“Religious liberty is one of our most fundamental freedoms,” Drummond wrote. “It allows us to worship according to our faith, and to be free from any duty that may conflict with our faith. The Opinion as issued by my predecessor misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”

…

“While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the … application will compel approval of similar applications by all faiths,” Drummond wrote. “I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”

I don’t say this often, but the Oklahoma attorney general was right.
The application was discussed during a pivotal board meeting in April

On April 11, during a meeting that got plenty of media attention, the Statewide Virtual Charter School Board expressed concerns about the conflicting statements from the attorneys general, especially at the idea that they could be sued in a personal capacity for doing something that violates the law.

After hours of discussion, they voted to reject the application as is and give the Catholic school board members another month to address a number of concerns—both religious and non-religious—about their proposal. Among the concerns: how its board was managed, how the school would address special education, and why the Catholics filing the application believed they were on the right side of the law on this matter.

That vote, however, just delayed the inevitable, albeit for good reason.

The big concern was that there would absolutely be lawsuits over this school because, despite all its supporters’ earlier claims, the charter school was not analogous to the situation in Maine (that the Supreme Court said was legal). This quite literally violated state law. It would also open the floodgates to other religious schools that cared less about giving children a comprehensive education and more about making sure those kids were fully indoctrinated with one group’s propaganda. (During the public comments portion of April’s meeting, one speaker warned the board that allowing a Catholic charter school to move forward could put them in a bind if The Satanic Temple made a similar request in the future. Lucien’s Law struck again!)

There was a more general problem here, too: Public schools and the students in them would inevitably suffer as more funding got whittled away for religious factories. The state’s already struggling public education system cannot afford to lose more resources.

Another issue: If having this school was so damn important to the Archdiocese of Oklahoma City, why didn’t they just open up a private school? The Catholic Church is many things, but cash-deprived isn’t one of them. Schuler said months ago that that they simply couldn’t compete against other free virtual schools that get taxpayer funding. But traditional public schools receive the same kind of dollars and Catholics have no problem playing in that arena, so the argument didn’t carry much weight. If they wanted public money to create the school, it seemed reasonable to demand that they play by public rules.

During that April meeting, all of the people who delivered public comments—every single one of them—spoke against the proposal. They were hardly atheist zealots; many were religious leaders who supported church/state separation and strong public education. The only real defender of the school was Ryan Walters, the State Superintendent of Public Instruction:

… We have here an application to provide more opportunities for kids and to show Oklahoma is a state that truly values religious freedom. I know that you all have heard from a lot of different folks, and you’ve heard from some radical leftists that their hatred for the Catholic Church blinds them [from] doing what’s best for kids. Their hatred for the Catholic Church has caused them to attack our very foundation of religious liberties in attacking this school… 

Even the board chair responded to that rant by saying he didn’t hear from any “radical” leftists, or hear any attacks against the Catholic Church, during the public comments part of the meeting. It was a polite way for him to tell Walters to shut up with his extreme conservative rhetoric.
Why the charter school was approved today, and what comes next

As we knew months ago, though, the April board meeting would likely become moot after Republicans changed its makeup. On Friday, retired superintendent Barry Beauchamp, one of the five board members, was finally replaced. Beauchamp’s term had expired but he had been sitting on the board until someone else could take his place, and the House Speaker finally made that happen just in time for today’s vote.

There was never going to be any question about how the replacement would vote given his recent career trajectory:

Bobek is an Oklahoma City businessman who previously served nearly four years on the State Board of Education and the State Board of Career and Technology Education through appointments by Gov. Kevin Stitt.

When it finally came time to vote, Bobek, Nellie Tayloe Sanders, and Dr. Scott Strawn all voted to approve the charter school. Only Dr. Robert Franklin and Willian Pearson said no. Franklin said at the end of the meeting he would be resigning from the board. Hard to argue with that; his vote is no longer needed when there are enough Republican appointees to override any semblance of sensible pushback.

Furthermore, on Monday, Gov. Stitt signed into law Senate Bill 516, which would abolish the entire Statewide Virtual Charter School Board by 2024 and replace it with a new board covering all charter schools. All appointees to that board would presumably be even more closely aligned with the state’s Republican leaders. (Ironically, the law says “A charter school shall be nonsectarian.” Too bad no one seems to care.)

It’s a disastrous decision that will create far more problems than it will solve. There’s no good reason, ethically or legally, to use taxpayer dollars to fund private religious education. Even if the proposed charter school does everything right, its desire to promote Catholicism ought to be a non-starter for state officials.

Americans United for Separation of Church and State’s President and CEO Rachel Laser has already announced plans to sue with the help of the ACLU:

“It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families than the state establishing the nation’s first religious public charter school. This is a sea change for American democracy. Americans United will work with our Oklahoma and national partners to take all possible legal action to fight this decision and defend the separation of church and state that’s promised in both the Oklahoma and U.S. Constitutions.

“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.”

Given how many many letters AU has already sent to relevant officials over the past few years, explaining in great detail all the legal problems with this charter school, it’s possible the lawsuit will require nothing more than a copy/paste job. It’s also likely they won’t be the only organization pushing back.

The Freedom From Religion Foundation has also sounded an alarm:

“State officials have allowed their personal religious preferences to take precedence over the Constitution by voting to force taxpayers to support a Catholic charter school,” says FFRF Co-President Annie Laurie Gaylor. “The Notre Dame law clinic, which is leading the assault, intends to overturn laws around the country requiring public charter schools to be secular.”

Even Attorney General Gentner Drummond, the Republican who has taken the church/state separation side on this issue, wasn’t pleased with the vote:

… Drummond said the decision is unconstitutional and that legal action is likely after a contract for the school is signed.

…

“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” Drummond said. “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.”

The existence of one faith-based, taxpayer-funded charter school threatens public education funding all across the country, especially since, as the New York Times notes, charter schools “make up 8 percent of public schools in the United States.”

Better to stop this one through the courts before the problem spreads elsewhere.

(Portions of this article were published earlier)