Board's contract with Oklahoma religious charter school illegal, state Supreme Court rules

By a clear majority, the Oklahoma Supreme Court ruled Tuesday a contract between the Oklahoma Statewide Virtual Charter School Board and a religious charter school violates both state and federal law, is unconstitutional and must be voided.

State Attorney General Gentner Drummond sued the Statewide Virtual Charter School Board on Oct. 20 after the board, by a 3-2 vote, approved the creation of St. Isidore of Seville Catholic Virtual School. The state Supreme Court, which assumed original jurisdiction in the case, heard oral arguments on April 2.

The case is being eyed closely due to its religious overtones and potential for a precedent-setting ruling. The court gave the defendants in the case 10 days to apply for a rehearing of the case, although it’s a virtual certainty the ruling Tuesday will be appealed, likely to a federal court. During the April hearing, one justice, Yvonne Kauger, pointedly asked Phil Sechler, an attorney for the state board, “Are we being used as a test case?” Sechler said, “No,” before Kauger interjected, “It sure looks like it.”

Attorneys for the state board and St. Isidore argued that the school, which would be the nation’s first Catholic virtual charter school, would actually be a private entity, and not a public school. They said not allowing St. Isidore to receive public funds like Oklahoma’s other charter schools would amount to religious discrimination that would violate the U.S. Constitution.

In his opinion, Justice James Winchester disagreed, saying the contract between the state board and St. Isidore violates the Oklahoma Constitution, the Oklahoma Charter Schools Act and the Establishment Clause of the U.S. Constitution, arguments made by Drummond during the April hearing.

“Under Oklahoma law, a charter school is a public school,” Winchester wrote. “As such, a charter school must be nonsectarian. … St. Isidore cannot justify its creation by invoking Free Exercise rights as a religious entity.”

Winchester said the Oklahoma Charter School Act requires charter schools “be nonsectarian in their programs, admission policies, and other operations.” He wrote that St. Isidore “does not dispute that it is a religious institution.”

The court ordered the Statewide Virtual Charter School Board to terminate its contract with St. Isidore. Joining Winchester in his decision were Justices Kauger, James Edmondson, Douglas Combs, Noma Gurich and Richard Darby. Justice Dustin Rowe agreed in part and dissented in part. Justice Dana Kuehn dissented while Chief Justice M. John Kane recused himself.

Rowe said he agreed with his colleagues that the Oklahoma Constitution mandates that charter schools must be nonsectarian, "but I dissent to the remainder of the Majority's opinion."

In her dissent, Kuehn predicted the court's decision eventually would be overturned: "By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution."

Drummond: 'A tremendous victory for religious liberty'

“This decision is a tremendous victory for religious liberty,” Drummond said. “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. Now Oklahomans can be assured that our tax dollars will not fund the teachings of Sharia Law or even Satanism. While I understand that the Governor and other politicians are disappointed with this outcome, I hope that the people of Oklahoma can rejoice that they will not be compelled to fund radical religious schools that violate their faith.”

The Oklahoma Chapter of the Council on American-Islamic Relations said it also supported the Supreme Court's decision, but objected to Drummond's characterization of Sharia law, saying it had the potential to result in an increase in anti-Muslim bias and hate.

“Sharia law teaches tolerance and respect for religious diversity and encourages students to be intellectually curious about the world around them — tenets that could certainly benefit Oklahoma’s school children," said Veronica Laizure, CAIR Oklahoma's deputy director "We encourage Mr. Drummond to get to know Oklahoma’s Muslim community and to learn about what Sharia law says before he equates Islamic educational principles with harm done to children, particularly in a state with the lowest education outcomes in the country.”

St. Isidore is operated by the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa. On its website, the school notes it’s already accredited by the Oklahoma State Department of Education. The school already has held its initial application period, and Lara Schuler, the archdiocese’s senior director of Catholic education, said St. Isidore has received more than 200 applications.

The school’s faculty members are to report on Aug. 1, with the first day of school set for Aug. 12, according to court documents. Drummond has said in court that public money would begin flowing to St. Isidore as of July 1 unless the court ruled otherwise.

Bishop, archbishop: 'Very disappointing'

Oklahoma City Archbishop Paul Coakley and Tulsa Bishop David Konderla issued a joint statement after the decision.

“Today’s ruling is very disappointing for the hundreds of prospective students and their families from across the state of Oklahoma who desired the educational experience and promise of St. Isidore of Seville Catholic Virtual School,” they said. “We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race or faith backgrounds.”

Sechler, the attorney for the state board, is senior counsel for Alliance Defending Freedom, a conservative Christian legal advocacy group. A spokesperson for ADF didn’t immediately return a message seeking comment on the decision.

State schools Superintendent Ryan Walters, who tried — and failed — three times to insert himself into the legal case before the state Supreme Court, said the court's decision was wrong.

"This ruling cannot and must not stand," Walters said. "There will be additional legal action in support of those parents and the millions of Oklahomans who believe deeply in religious liberty, and I will never stop fighting for Oklahomans’ constitutional, God-given right to express their religious belief.”

Another St. Isidore case moving through a lower court

A second case involving St. Isidore is being heard in Oklahoma County District Court. In that case, the Oklahoma Parent Legislative Action Committee, a non-partisan public school advocacy group, joined nine other parents, faith leaders and public education advocates in filing its lawsuit in July. They asked a district judge to block St. Isidore from opening and receiving state funds.

On June 5, District Judge Richard Ogden allowed most of that case to proceed after the defendants — Walters and the Oklahoma State Department of Education, in addition to the state board and St. Isidore — had asked him to dismiss the case outright.

Ogden has scheduled a hearing for July 24 on a motion made by the plaintiffs for a restraining order to prevent state money from flowing to St. Isidore. All sides in the case and Ogden also acknowledged in court that any state Supreme Court decision might render that hearing unnecessary.

The attorneys representing the plaintiffs are from groups, including Americans United for Separation of Church and State, the American Civil Liberties Union, Education Law Center and Freedom From Religion Foundation. Those groups issued a joint statement Tuesday.

“The Oklahoma Supreme Court’s decision safeguards public education and upholds the separation of religion and government,” the statement read. “Charter schools are public schools that must be secular and serve all students. St. Isidore of Seville Catholic Virtual School, which plans to discriminate against students, families, and staff and indoctrinate students into one religion, cannot operate as a public charter school. We will continue our efforts to protect public education and religious freedom, including the separation of church and state.”

The National Alliance for Public Charter Schools also issued a statement praising the state Supreme Court’s ruling, calling it a “resounding victory for the integrity of public education.”

“All charter schools are public schools,” said Eric Paisner, the organization’s acting chief executive officer. “The National Alliance firmly believes charter schools, like all other public schools, may not be religious institutions. We insist every charter school student must be given the same federal and state civil rights and constitutional protections as their district school peers. The Oklahoma Supreme Court’s decision reassures all Oklahoma families that their students’ constitutional rights are not sacrificed when they choose to attend a public charter school.”