The Flaws in the Oklahoma Ruling Against Catholic Charter Schools

Drummond v. Oklahoma Statewide Virtual Charter School Board

​The Oklahoma Supreme Court ruled 7-1 this week against allowing public charter funds to support a virtual Catholic school, holding that the funding of online religious schools by the state to be unconstitutional.
 
“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,” the Archdiocese of Oklahoma City said in a statement. “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.”
 
Our take is that the Oklahoma Supreme Court’s opinion is buttoned down, logical, and eminently overturnable. It relies on that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry. In our view, publicly funded charter schools are similar to voucher programs, which are often given to religious schools that – in every state – must meet mandated standards in English, math, history, science, and other subjects.
 
Taking the state’s money, in our view, would make St. Isidore a publicly funded school, but not a “public school.”
 
Justice Dana Kuehn made a similar point in her lone dissent:
 
“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. 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.”
 
The Oklahoma State Attorney General, Gentner Drummond – the petitioner filing against St. Isidore – likened the inclusion of a Catholic school to a private takeover of the operations of the Oklahoma Highway Patrol, rebranding it as the “Catholic Church Highway Patrol.” (Imagine the fun comedians would have with that, being pulled over for confession and then having the officer ask you, “sir, you know it’s Friday, is that meat on your breath?”)
 
Justice Kuehn latched on the ridiculous nature of this metaphor. She wrote: “The logical flaw is that, unlike law enforcement, enrollment in a charter school is fundamentally a choice for parents to make. St. Isidore would not be ‘taking over’ any function that is traditionally the exclusive realm of the State. It would exist alongside state-mandated secular options.”
 
Justice Kuehn is right. The issue here is that inclusion of St. Isidore would give the people of Oklahoma a choice in picking a school that would adhere to state-mandated standards, giving parents a choice for a rigorous education and the continuation of their cherished values.
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Justice Kuehn pointed to the U.S. Supreme Court’s striking down of a Montana Supreme Court opinion, Espinoza (2020). In that case, the Supreme Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause.
 
Justice Kuehn predicts a similar result.