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A state board in Oklahoma voted down Tuesday an application for the country’s first religious charter school, highlighting the legal uncertainty around using tax dollars to directly pay for religious education.
In rejecting the school’s initial application, board members acknowledged that the larger issue of whether religious charter schools pass legal muster would likely be settled by the U.S. Supreme Court. The court has already ruled that states cannot exclude religious schools from private school choice programs.
If the court eventually rules in favor of religious charter schools, as some legal experts expect, it could have broad implications for the separation of church and state, as well as lead to more charter schools and less money for traditional public schools.
“This is a huge deal,” said Preston Green, an education law professor at the University of Connecticut, “and not just for red states, but for the entire country.”
The unanimous vote, which came after about two hours of discussion by Oklahoma’s five-member Statewide Virtual Charter School Board, delayed a final decision on the application for St. Isidore of Seville Catholic Virtual School. The school can submit a revised application, which could come before the board again as soon as next month.
Board members raised a number of issues with the application, from how the proposed charter school would serve students with disabilities to its management structure to how it would ensure internet connectivity for students. But the thorniest question was whether it was even legal to approve a charter school with an explicitly religious mission.
“The constitutional issue is a big high hurdle,” said Board Chairperson Robert Franklin.
Another board member, Scott Strawn, said, “Is it settled law? That’s the gray area we’re all living in.”
The Catholic Church in Oklahoma City and Tulsa proposed the online charter school as a way to reach students in rural areas with few local schools. Named for the patron saint of the internet, the St. Isidore school would eventually enroll up to 1,500 students statewide in kindergarten through 12th grade.
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Charter schools are publicly funded but operated by private groups rather than local school boards. Some religious groups run charter schools, but the schools are fully secular.
By contrast, the Oklahoma charter school would be explicitly religious. The school application says Catholic schools are “places of evangelization” that serve the mission of the church. The online charter school would display religious symbols such as crucifixes, and students would study religion and attend church services, the application says.
Before the vote Tuesday, the board heard from several commenters opposed to religious charter schools.
Bruce Prescott, a retired Baptist minister, said religious charter schools would “upend the entire educational landscape in Oklahoma.”
“One of the hallmarks of public schools in America is that they are non-discriminatory and secular in their acceptance of all students regardless of their faith or beliefs,” he said.
A proposed religious charter school sparks debate
Critics say the proposed school would violate state laws and the “establishment clause” in the U.S. Constitution’s First Amendment, which prohibits the government from endorsing any religion. They have also raised concerns that the school could discriminate against students or employees based on their religion, sexual orientation, or gender identity.
In its application, the church said the school would adopt an anti-discrimination policy, but would also defer to Catholic teachings on issues such as marriage and homosexuality, which the church considers immoral when acted upon. In interviews, Oklahoma church officials have declined to say whether the school would admit openly gay or transgender students.
“St. Isidore plans to, or at the very least reserves the right to, unlawfully discriminate in admissions and employment,” said a letter to the state virtual charter school board from Americans United for Separation of Church and State, a legal advocacy group that opposes the proposed school.
Proponents of the school argue that it is the state’s charter school law, not the proposed school, that violates the First Amendment. They say that stopping religious groups from operating charter schools according to their faith amounts to religious discrimination.
In December, Oklahoma’s former Republican attorney general issued an opinion saying the state’s ban on religious charter schools likely violated the First Amendment. But shortly after, the state’s newly elected Republican attorney general withdrew the opinion, saying it tried to “justify state-funded religion.”
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The state’s Republican governor attacked the move by Attorney General Gentner Drummond.
“You contend that the United States and the Oklahoma Constitutions permit, and indeed require, the state to discriminate against religious organizations seeking authorization to operate charter schools,” Gov. Kevin Stitt wrote in a letter to Drummond. “In fact, the opposite is true.”
Several members of the statewide virtual charter school board noted the differing legal opinions in the discussion Tuesday. Franklin, the board chair, said he asked prior to the meeting if board members would have legal protection and “support from the attorney general’s office” if they were sued after the final decision.
“We’re not going to be able to answer that legal question,” he said.
The big legal question: Are charter schools public or private?
Both sides of the debate about whether charter schools can be religious tend to agree that, under the U.S. Constitution, public schools cannot promote religion. Where they disagree is whether charter schools are truly public schools.
In legal terms, the question is whether charter schools are “state actors.” If so, they cannot impose religious beliefs on students.
Derek Black, a law professor at the University of South Carolina, said charter schools are clearly state actors.
“I would say there’s 101 reasons why they are state actors,” he said, “and none why they are not.”
He noted that charter schools and traditional public schools both receive public money, cannot charge tuition or turn students away, and must adhere to state academic standards. Unlike traditional public schools, charter schools don’t answer to elected school boards and they enjoy flexibility from some state regulations. But those qualities don’t make charter schools “private actors,” Black argued.
If Oklahoma were to approve the plan for a religious charter school, the state would essentially be endorsing the school’s religious beliefs, Black said.
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“That is the state adopting private religious beliefs as the state’s curriculum,” he said. “That stamp all by itself is state action.”
But proponents of religious charter schools argue they are more private than public.
Nicole Stelle Garnett, a law professor at the University of Notre Dame, said charter schools do not qualify as state actors because their actions cannot be attributed to the government. In fact, she argues, the premise behind charter schools is that they operate independently of the state in a way that traditional public schools cannot.
“That’s kind of the whole point of charter schools,” she said, “to foster pluralism and foster innovation by giving them freedom from government control.”
Whether or not charter schools are state actors is at the heart of a legal case in North Carolina, where a student sued a charter school that requires girls to wear skirts. The school has argued that it is not subject to federal anti-discrimination laws because it is not a state actor.
A lower court ruled against the school, which appealed to the Supreme Court. In January, the court asked the Biden administration to weigh in on the matter, which could signal the court’s interest in the legal question.
Based on recent Supreme Court rulings that said states cannot stop religious schools from receiving public benefits, some legal experts think the court’s conservative majority will declare that charter schools are not state actors — and therefore free to promote religious beliefs. Such a ruling would raise a new set of issues, including whether religious charter schools may discriminate against students or staffers on religious grounds.
“Those are questions that remain unanswered,” Garnett said.
Some of the original proponents of charter schools, however, say any attempt to mix charter schools and religious instruction runs counter to the intent of those schools.
“If a religious school receives public funding, that is not a charter school and should not be called that,” said Ember Reichgott Junge, a former Democratic state senator in Minnesota who wrote the senate version of the country’s first charter school law, which passed in 1991. “It’s something else.”
Patrick Wall is a senior reporter covering national education issues. Contact him at firstname.lastname@example.org. Cara Fitzpatrick is a story editor at Chalkbeat.