In June 2023, the Oklahoma Statewide Virtual Charter School Board (the “Board”) approved an application from the Archdiocese of Oklahoma City and the Diocese of Tulsa to create a virtual Catholic school, St. Isidore of Seville. Like all other virtual charter schools in Oklahoma, St. Isidore will be tuition free, funded by state tax revenue. Named for the patron saint of technology and electronic communication, the online school is scheduled to open in Autumn 2024, with an initial enrollment of 500 students from kindergarten through twelfth grades.

It will open, that is, if it successfully defends against two lawsuits filed to prevent the school from receiving state funding. Both lawsuits claim that language in the Oklahoma Constitution prohibits St. Isidore from receiving state funding.

THE LAWSUITS
Oklahoma Attorney General Gentner Drummond filed one lawsuit against the Board in the Oklahoma Supreme Court, asking the Court to negate the Board’s decision. In announcing the lawsuit, Drummond unironically asserted that the Board “violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars.” He claimed that “Oklahomans are being compelled to fund Catholicism,” which he contends “is a gross violation of our religious liberty.”

Similarly, a consortium of parents and religious organizations, represented by an alphabet soup of anti-Catholic interest groups, filed a lawsuit in Oklahoma County District Court to prevent the school from opening. This lawsuit seeks to enjoin the state of Oklahoma from sponsoring and funding St. Isidore. Attorneys for Americans United for Separation of Church and State, the ACLU and Freedom From Religion Foundation claim that St. Isidore will “indoctrinate its students in Catholic religious beliefs” and “embolden religious extremists.”

One plaintiff told the Washington Post that St. Isidore would “take money away from public schools” and force students “to practice someone else’s religion in order to access education.”

Like the statement of the Oklahoma Attorney General, these assertions are made without the slightest self-awareness of the irony of purporting to protect religious freedom by denying religious freedom.

THE U.S. SUPREME COURT
Regardless of what happens in the Oklahoma courts, the
U.S. Supreme Court is likely to affirm the Board’s decision, because the Oklahoma constitutional provision invoked by the lawsuits probably violates the U.S. Constitution’s protection of the free exercise of religion. The Oklahoma Constitution’s relevant provision provides,

No 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, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

This is Oklahoma’s version of what is known as a “Blaine Amendment,” similar to constitutional or civil code provisions in approximately 37 of the 50 States.

While the U.S. Supreme Court has not expressly invalidated any Blaine amendment or statute, in recent years SCOTUS has consistently issued rulings that render them essentially meaningless. The most recent example was in 2020 and is similar to the Oklahoma cases.

In Espinoza v. Montana Dept. of Revenue, SCOTUS ruled that if a state decides to subsidize private education, the state cannot discriminate against religious private schools. “A state need not subsidize private education,” the Court wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

While St. Isidore is a public charter school, the analysis and reasoning is virtually identical to the Montana case. Oklahoma permits virtual charter schools and funds those schools from state tax dollars. Because the funds are generally available, for Oklahoma to deny funding to St. Isidore, it must make a specific decision to discriminate against the school for its religious opinions.

THE DISCRIMINATION FACTOR
All education is based upon some definitive set of religious opinions. “Secular” schools are built upon the religious opinion that non-religion should be the basis of education. St. Isidore will be built upon the religious opinion that religion is vital to education. Thus, for Oklahoma to deny funding to St. Isidore requires it to discriminate against the Catholic school’s religious opinions and in favor of the secular school’s religious opinions. This, the U.S. Supreme Court has declared, a state may not do.

In 2016, a ballot question in Oklahoma would have removed the noxious Blaine Amendment from the Oklahoma State Constitution. Opposed by the same organizations that filed suit against St. Isidore, the question failed, leaving the amendment in the Constitution.

If the cases against St. Isidore reach the U.S. Supreme Court, it will be the opportunity for the court to call the amendment what it is: a bigoted, unconstitutional infringement of the free exercise of religion. Based upon SCOTUS’s recent decisions on similar cases, it is more likely than not that the court will make that call. That will not only be a victory for Catholics in Oklahoma, but send a nationwide signal that states may not discriminate against religious schools if the state funds or programs are otherwise generally available.

Dr. Kenneth Craycraft is an attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary & School of Theology.

This article appeared in the January 2024 edition of The Catholic Telegraph Magazine. For your complimentary subscription, click here.