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Oklahoma Supreme Court Ruling on Religious Charter Schools Raises Questions

On June 25, the Oklahoma Supreme Court issued a significant ruling regarding the state’s ability to authorize a religious charter school, ultimately deciding against such an initiative. While the decision settles the matter for now within Oklahoma, the court’s complex reasoning surrounding the First Amendment suggests that the U.S. Supreme Court will likely need to address this issue in the future, whether in this context or through a similar case arising in another jurisdiction.

The controversy was fueled by the Supreme Court’s 2022 decision in Carson v. Makin, which determined that Maine’s exclusion of religious schools from its voucher program was unconstitutional. Following this precedent, both the Archdiocese of Oklahoma City and the Diocese of Tulsa sought approval from the state’s Charter School Board to establish the St. Isidore of Seville Catholic Virtual School. The board granted this request, a decision that found support from the state’s Attorney General, John O’Connor. He referenced the Supreme Court’s previous rulings in Makin, Espinoza v. Montana (2020), and Trinity Lutheran v. Comer (2017) to bolster his stance, arguing that Oklahoma’s charter school laws allow various private organizations to run charter schools, thereby making the exclusion of religious schools a violation of the free exercise clause.

However, following O’Connor’s tenure, new Attorney General Gentner Drummond quickly rejected O’Connor’s interpretation. He urged the board to reverse its decision, arguing on grounds of potential consequences that allowing a Catholic charter could obligate the state to fund religious schools ranging from Islamic institutions to even those based on controversial beliefs such as those of the Church of Satan. This led Drummond to seek intervention from the state Supreme Court, which ultimately sided with him in a 6–2 vote in the case of Drummond v. Oklahoma Statewide Virtual Charter School Board.

The court’s reasoning originated from a review of Article II Section 5 of Oklahoma’s state constitution, termed the Blaine Amendment. This provision prohibits the appropriation of public money for religious institutions. However, this specific interpretation is at odds with decisions from the U.S. Supreme Court, which has found such Blaine Amendments to be unconstitutional in prior cases including Comer and Espinoza.

Further complicating the matter, the Oklahoma Supreme Court also noted that state law mandates charter schools to be nonsectarian—a point that was not contested. The key issue at stake was whether this requirement could infringe upon constitutional rights. The court posited that the charter school would be viewed as a “state actor,” thereby necessitating adherence to the same legal obligations faced by traditional public schools. However, whether this characterization holds weight depends significantly on how the First Amendment is applied, a point where the court’s conclusions seem misaligned with recent Supreme Court perspectives.

When discussing the establishment clause, the court referenced the 1947 ruling in Everson v. Board of Education, where it was determined that the government cannot favor one religion over another. This reference raised eyebrows, particularly as contemporary decisions—like Kennedy v. Bremerton (2022)—have moved away from the older “no aid” approach that once guided cases like Everson. Instead, the Supreme Court has advocated for interpreting the establishment clause through lenses of historical understanding and practices.

The opinion further indicated an inconsistency by not fully engaging with the implications of this historical perspective, mainly failing to reevaluate Bremerton and emphasizing older cases related to school prayer, which do not directly correspond to the fundamentally voluntary nature of charter schools. Importantly, participation in any religious activities at charter schools is purely voluntary, contrasting sharply with traditional public schools.

The analysis concerning the free exercise clause raised additional questions. The majority opinion stated that the previous trilogy of cases—Makin, Espinoza, and Comer—were irrelevant because they dealt with private entities, while this case involved state sponsorship of a religious organization. This argument overlooked the reality that most charter schools operate under the auspices of private organizations and that such private entities do not automatically qualify as state extensions merely by virtue of receiving state charters.

Overall, while one might have anticipated a more cogent decision, the Oklahoma Supreme Court’s ruling leaves many critical issues inadequately addressed. Regardless of whether an appeal is filed or if the Supreme Court decides against hearing the case, the complexities underlying this ruling indicate that the debate surrounding religious charter schools is far from settled.

In conclusion, this ruling represents a preliminary step in the broader conversation about the interplay between state policies and religious education, rather than a definitive resolution.

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