In Oklahoma, a new test of religion in public schools

OKLAHOMA CITY — A new lawsuit is challenging what would be the nation’s first publicly-funded religious charter school.

Opponents say establishing St. Isidore of Seville Catholic Virtual School would violate the state’s constitution and charter school regulations on a few grounds, including using public funding for a school that could discriminate against students, families and employees based on their religion or LGBTQ+ status.

In June, the Oklahoma Statewide Virtual Charter School Board voted 3-2 in favor of establishing the school, which would open in 2024. The decision allowed the charter school to receive taxpayer funding in order to offer K-12 education to students across the state.

Rachel Laser, president and CEO of Americans United for the Separation of Church and State who is part of the coalition challenging the charter school in court, said the group believes the law is clear that “charter schools are public schools” and must remain secular and open to all students.

“No public school family should fear that their child will be required to take theology classes or be expelled for failing to conform to religious doctrines,” Laser said.

Among the groups supporting the lawsuit are the American Civil Liberties Union, Americans United for Separation of Church and State, and the Education Law Center.

“We are already losing teachers, and the environment around public schools is just so bad and now we want to divert money to something that is unconstitutional,” said Erin Brewer, the vice president of the Oklahoma Parents Legislative Action Committee and parent of two children who attend local public school. “My kid is going to lose, and every parent is going to lose, and it’s not fair,” Brewer said.

St. Isidore of Seville isn’t expected to open until 2024, but it has reignited debates about “parental rights” and around the separation of church and state, and could pave the way for a potential test case in the U.S. Supreme Court on the issue of religious freedom.

Gov. Kevin Stitt did not directly respond to the lawsuit when asked about it by reporters during a news conference Monday, but said he believes the rights of parents to choose what kind of school their children go to is important. Stitt said that he would love to see Catholic, Jewish and Muslim charter schools as well.

“Parents want to influence and they want to be involved in their kid’s lives,” Stitt said. “We’re made up of communities here in Oklahoma and taxpayers and so to unlock more school options, I’m always going to be supportive of that.”

Oklahoma Gov. Kevin Stitt has said the creation of a publicly funded religious charter schools is a “great thing” for the state. Photo by Doug Hoke/The Oklahoman/USA Today Network

It also comes at a time when public school advocates are worried about state investment in public education. In May, Oklahoma lawmakers passed House Bill 1934, a tax credit program that would give public dollars to families to use for private school or homeschool tuition and expenses. Oklahoma families can take their public tax dollars with them to any school of their choice starting in 2024 — whether religiously affiliated or secular.

Beginning next year, families in Oklahoma with children in private K-12 schools will receive refundable tax credits ranging from $5,000 to $7,500 per student, depending on household income. Home-school families would qualify for a $1,000 refundable tax credit per child.

Initially, Stitt had envisioned a tax credit without any income limitations or prerequisites. However, the ultimate version of the plan establishes a $150 million budget for the year 2024, with priority given to families earning less than $150,000, but families with incomes exceeding $250,000 remain eligible for a $5,000 per student tax credit. The tax credit budget will progressively increase to $250 million by 2026.

Erika Wright, founder of the Oklahoma Rural Schools Coalition, said the funding of any religious school will divert crucial funds from public schools.

“Oklahoma’s public school funding has ranked among the lowest in the nation for too long,” Wright said. “If we can’t afford our constitutionally mandated schools, we certainly can’t afford to divert funds to religious charter schools.”

Parents like Brewer worry about what this will mean for her children’s own school, where throughout the year, families fundraise for basic classroom supplies, along with after-school activities and field trips.

“Our schools should be able to afford paper among a million other things,” Brewer said.

Another test of religion in public schools

The Archdiocese of Oklahoma City said it plans to open the online school, St. Isidore of Seville, in 2024 and will provide free education to K-12 students across the state. However, it still must negotiate its contract with the virtual charter school board, and legal experts have raised concerns about the school’s adherence to Catholic teachings, particularly regarding sexual orientation and gender identity, violating the law. .

Brett Farley, a member of the school’s board of directors and a lobbyist for the archdiocese, said in a statement that it was “too early to even say whether openly gay or transgender students and employees would be welcome at the school.”

Months prior to the school’s approval, Republican Attorney General Gentner Drummond wrote a formal letter to the school board that said voting in favor of St. Isidore or any other religious charter school would violate the Oklahoma Constitution and state law, and would become a “slippery slope” toward state-funded religion. Drummond withdrew the opinion of his predecessor — another Republican — citing the need for further clarity from the Supreme Court on whether charter schools should be considered private or public entities.

“I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their faith,” Drummond wrote. “Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by ALL faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, one of the groups representing the plaintiffs in the lawsuit, said this is just the latest attempt from Republican lawmakers in Oklahoma to insert “religious dogma” into public schools and believes the end goal is to get the case heard by the Supreme Court and its conservative majority.

Legal experts who follow the court have noted that in recent years, Supreme Court justices have been more likely to side with religious groups on questions of religious freedom.

It’s been decades since the Supreme Court said school-sponsored prayer in public schools violated the First Amendment. A majority of Americans think the government should enforce separation of church and state, according to a 2021 survey from Pew Research Center. And “there is far more support for church-state separation than for church-state integration in the U.S. public at large,” researchers found.

But there is a spectrum of ideas on what that means in daily life, the survey suggests. For instance, 30 percent of respondents thought public school teachers should be allowed to lead students in Christian prayers. Christians were much more likely to support integrating church and state than those from other religions, and support for this idea was higher in the South.

Gaylor said she believes the attempt to provide Catholic schools a pathway to public funding and a public student base of enrollment is a bailout for a type of schooling that has seen a decadeslong decline in both the number of Catholic schools and students due to the COVID-19 pandemic. Nationwide enrollment in Catholic schools has since rebounded — by 3.8 percent, the first increase in two decades — in 2022.

“When you look at who is in position, who will benefit from this, it’s Catholic schools,” Gaylor said. “They don’t have enough kids to fill their schools, and it’s really insidious and antithetical to what our country was founded on.”

How the first religious charter school in the U.S. was approved

The controversy surrounding the approval of St. Isidore of Seville intensified with the sudden replacement of a board member. Days before the board was set to vote in June, Oklahoma House Speaker Charles McCall replaced long-serving member Barry Beauchamp with Brian Bobek, who has close ties to Gov. Kevin Stitt and State Schools Superintendent Ryan Walters.

Bobek’s last-minute appointment to the all-Republican, five-member board drew criticism from board chair Robert Franklin, who said it was a “very intentional” political move. Despite requests from the chair for Bobek to recuse, he voted in favor of the archdiocese’s application.

Michael Scaperlanda, chancellor for the Archdiocese of Oklahoma City and a constitutional law scholar, argued before the board, “Charter schools were created as an innovative process to allow private entities to create schools and innovate where public schools were failing.” Catholic officials contend that as private schools, charter schools should be free to embrace religious doctrine.

However, Patrick Elliott, senior counsel for the Freedom From Religion Foundation, said allowing a state-funded school to promote a particular religion would “completely undermine” decades of legal precedent and be counter to Thomas Jefferson and James Madison’s understanding of separation of church and state.

“As it stands now, there’s just no way this passes constitutional muster,” Elliot said. “I think when a judge reviews it, they’ll have to explain how it’s not only against Oklahoma state law but the Oklahoma state constitution before they can even begin to contemplate how it goes against the constitution as well.”

This is only the latest attempt to push religion, Christianity in particular, into Oklahoma’s public schools.

Walters, who was elected state superintendent of public instruction in November, said in a July interview with Fox News that the Bible should be taught alongside the U.S. Constitution and the Federalist Papers, a collection of essays largely written by Alexander Hamilton and James Madison that explained key parts of the proposed constitution.

Walters has frequently accused public schools of allowing pornography in classrooms, advocating for the review of 190 books with LGBTQ+ characters and themes.

The Freedom From Religion Foundation, a nonprofit that supports the separation of church and state, sent Walters a letter in May objecting to the review, writing that the Bible is full of sexualized content, including rape and incest.

“Our secular Constitution, which you took an oath to uphold, requires government neutrality when it comes to religion, including in our public schools, where children of all and no religions are welcome and which exist to educate, not to indoctrinate students into the personal religion of the state,” the letter read.

Stitt also came under fire after his re-election victory in November when he claimed “every square inch” of Oklahoma for Jesus.

Allyson Shortle, a University of Oklahoma professor who studies group identity in the context of religion and national identity, said these efforts by Walters and Stitt combined with the large number of anti-LGBTQ+ bills introduced to the Oklahoma State legislature this past session, show the influence of Chrisitan nationalism in state politics.

“We see these barely coded bills which are really just appeals to Christian supremacy,” Shortle said. “There is a dominant Christian society in Oklahoma, and they feel good about inserting Christianity into public life through as many ways as possible.”

Shortle said polling after the most recent midterms showed that most Christians like to see the same values in the politicians they elect. This is in part why she believes these efforts have exploded in the months since.

“All of these bills have major implications, like impacting a person’s ability to get schooling in a way that’s not clouded by religion,” Shortle said. “But [lawmakers] are doing so because they seem to have a favorable climate in the state and we are seeing that more throughout the nation too.”

The ACLU said recent decisions by the Supreme Court have continued to blur the lines between church and state. A 2022 decision in Carson v. Makin, the court held for the first time that a state must fund religious activity as part of an educational aid program. The court went on to say that state funding of religious indoctrination is not only permissible, but might be required in some circumstances.

Previously, the high court has granted permission for predominantly Christian prayers to be conducted at government meetings, and it has also upheld the display of large religious symbols, such as a 40-foot cross on public land.

Beyond the potential blurring of the separation of church and state, many parents and teachers have questioned how this school, and the potential for future religious charter schools, affects the equity of public education in Oklahoma.

“The lack of investment in public schools is the plan,” Gaylor said.

For Brewer and her family, another school year is just around the corner. She said she’s ready for the school supplies list and whatever surprises might come with it this year.