Lawsuits challenge constitutional status of nation's first Catholic charter school

By Kate Scanlon

(OSV News) -- Oklahoma's Attorney General Gentner Drummond is challenging the constitutionality of the nation's first publicly funded religious charter school after a state school board approved the Catholic school's application.

The Oklahoma Statewide Virtual Charter School Board voted in June to approve an application by the Archdiocese of Oklahoma City to establish the St. Isidore of Seville Virtual Charter School. Drummond argued in a lawsuit filed Oct. 20 that the board's decision was unconstitutional.

"The board members who approved this contract have violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars," Drummond said in a statement.

However, Phil Sechler, senior counsel with Alliance Defending Freedom, told OSV News that had the school board not approved the Catholic school as a qualified applicant, it would have treated a religious group as "second-class citizens."

"The argument that we are making is simply that religious groups should be treated fairly like any other group who might apply for a charter school grant," he said. "And the board did exactly what the Free Exercise Clause requires, which is to treat them fairly."

The school board, Sechler argued, decided St. Isidore's "was otherwise qualified, and they weren't going to deny it just because the applicant was Catholic."

But in his statement, Drummond said, "Today, Oklahomans are being compelled to fund Catholicism. Because of the legal precedent created by the Board's actions, tomorrow we may be forced to fund radical Muslim teachings like Sharia law. In fact, Governor Stitt has already indicated that he would welcome a Muslim charter school funded by our tax dollars."

In February, Gov. Kevin Stitt said he would welcome Catholics, Jews and Muslims setting up their own charter schools, saying, "I believe kids belong to parents, not the government, and if parents want to teach their kids certain beliefs (about their faith) ... I'm very supportive of that."

However, Drummond stated, "That is a gross violation of our religious liberty. As the defender of Oklahoma's religious freedoms, I am prepared to litigate this issue to the United States Supreme Court if that's what is required to protect our Constitutional rights."

Both Catholics and Muslims, which Drummond singled out in his lawsuit, are also tiny minorities in Oklahoma, representing 8% and less than 1%, respectively, of the state's population.

Earlier this year, Drummond revoked a legal opinion written by his predecessor that argued blocking the establishment of religious charter schools was "likely" unconstitutional in light of recent U.S. Supreme Court decisions about religious liberty.

Some education activists and proponents of the strict separation of church and state objected to the use of public funds for the Catholic charter school, and filed a separate lawsuit in July asking a state court to block them.

Drummond's lawsuit filed with the Oklahoma Supreme Court argues the state's constitution expressly prohibits "sectarian control" of public schools and thus the publicly-funded Catholic school violates the Establishment Clause of the U.S. Constitution's First Amendment.

Drummond argued these constitutional protections are in place to protect religious liberty, preventing a scenario in which taxpayers are forced to fund a religious school of a faith against their conscience, for example, forcing Muslim Oklahomans to fund Christian and Jewish schools, or Jewish Oklahomans to fund Christian and Muslim schools, or those without a religious identity to fund a religious school at all.

"There is no religious freedom in compelling Oklahomans to fund religions that may violate their own deeply held beliefs," he 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."

At the time of the school board's vote, Brett Farley, executive director of the Catholic Conference of Oklahoma, said in a statement to OSV News, "We are elated that the board agreed with our argument and application for the nation's first religious charter school."