Background
On June 5, 2023, after having initially rejected the proposal to create St. Isidore of Seville Catholic Virtual School, due to concerns over its governance structure and caring for students with special needs, Oklahoma’s Statewide Virtual Charter School Board authorized its opening in fall 2024.
Officials of St. Isidore, named after the Roman Catholic patron saint of the internet, had hoped to admit up to 500 K–12 students statewide under the direction of the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa with state funding of about $2.5 million.
However, on June 25, 2024, in Drummond v. Oklahoma Statewide Virtual Charter School Board, the state Supreme Court, relying largely on Oklahoma law, invalidated plans to open St. Isidore. The court found that the proposal to create the school “violate[d] the plain terms of Article 2, Section 5 of the Oklahoma Constitution,” under which “[n]o public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion….”
In its rationale, the Oklahoma panel distinguished the dispute from three recent United States Supreme Court cases that expanded the limits of aid to faith-based schools. These cases, reviewed below, are likely to arise during oral arguments at the Supreme Court and will likely influence its outcome.
The court further observed that there was no compelling governmental interest justifying St. Isidore’s creation as a private religious charter school using public monies. Moreover, the court concluded that St. Isidore’s proposed opening violated the Federal Establishment Clause.
The way the Supreme Court answers these important questions will likely have a significant impact on the extent to which states can use public funds to support faith-based schools.
Reflections
Oklahoma’s Governor, Kevin Stitt, a supporter of St. Isidore, said that the outcome here “stands to be one of the most significant religious and education freedom decisions in our lifetime.” On the other hand, critics of St. Isidore, including the State’s Attorney General, Gentner Drummond, essentially agreed about the case’s potential significance but voiced concerns that a judgment in favor of St. Isidore would threaten religious liberty by creating closer ties between the state and faith-based organizations while impacting public school financing.
St. Isidore is a potential game-changer because at stake is whether or how far the Supreme Court may continue in expanding the boundaries of permissible state aid to faith-based institutions and their students under the First Amendment Religion Clauses. According to these clauses, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
As St. Isidore heads to oral arguments, it is important to acknowledge that in a recent trilogy of opinions authored by Chief Justice Roberts, the Supreme Court adopted its friendliest attitude ever toward faith-based schools, their students, and parents, holding that states cannot deny institutions or individuals generally available aid solely due to their religions.
In 2017’s Trinity Lutheran Church of Columbia v. Comer, the Court declared that Missouri officials could not deny the church’s preschool the opportunity to receive a grant to enhance playground safety because of its religious nature insofar as the program was generally available.
Similarly, in 2020’s Espinoza v. Montana Department of Revenue, a dispute over an educational tax-credit program, the Supreme Court enabled parents to use the monies in their accounts to pay tuition to send their children to faith-based schools because the state constitution was impermissibly more restrictive on aid than the First Amendment.
Then, in 2022’s Carson v. Makin, the Justices declared that Maine could not deny parents the opportunity to send their children to faith-based schools under a “tuitioning” program affording them to use state dollars to pay tuition elsewhere if their districts lacked their own secondary schools. The Court explained that the underlying law violated the Free Exercise Clause because it was neither neutral toward religion nor afforded parents the opportunity to send their children to the schools of their choice
Key Issues
At issue in St. Isidore are two key questions. The first asks whether the teachings of “a privately owned and run school constitute state action simply because it contracts with the state”? The second addresses “whether a state violates the First Amendment's free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious….”
The way the Supreme Court answers these important questions will likely have a significant impact on the extent to which states can use public funds to support faith-based schools. As such, it behooves SBOs, their boards, and other educational leaders to follow what happens to St. Isidore.
Suppose the Justices do allow the creation of St. Isidore, a real possibility based on their three most recent cases on aid. In that case, cash-strapped local school boards will face even greater challenges in securing adequate fiscal resources for their students and programs.
The Court is expected to rule in late June or early July 2025 when its current term ends, so stay tuned for updates on this important case.