Now Christian schools in Maine, where the case originated, want the courts to go even further. 

They object to a state law that requires them to accept all students, including those who don’t follow their religion, have disabilities or identify as LGBTQ. The U.S. Court of Appeals for the First Circuit heard the case in January.

“This moral panic over letting religious schools be religious — even if they’re receiving tuition subsidies — needs to end,” said Adele Keim, senior counsel with the Becket Fund for Religious Liberty. The nonprofit law firm represents St. Dominic Academy in Auburn, Maine, which sued over the rule along with CrossPoint Church, which operates . 

The nondiscrimination law, schools say, prevents them from participating in “town tuitioning” — a program that picks up a student’s private school costs if there’s no public option in their community. 

The state argues that it’s only asking religious schools to comply with the same rules public and secular private schools follow.

“The schools are asking for special treatment,” said Alexandra Zaretsky, litigation counsel for Americans United for Separation of Church and State. The nonprofit advocacy group submitted a brief to the court in support of Maine’s position. “It should be the state’s prerogative to say ‘If you’re getting funding from the state, then you have to follow our generally applicable laws.’ ”

Most states with voucher programs already allow private and religious schools to deny admissions to whomever they want. Maine is an outlier — a blue state that would prefer to keep religious schools out of the tuitioning program. 

The debate reflects a heightened concern among advocates for public education that the nationwide push for private school choice will further isolate students.

“Religious schools getting the taxpayer-funded ability to pick their own kids is one real goal of this school voucher push — a feature, not a bug,” said Joshua Cowen, an education professor at Michigan State University. Last year, he released a book that delves into the way culture war battles have fueled private school choice.

In March, in opposition to Texas’ new ESA law, which passed in April with help from President Donald Trump. The president of the state House, urging them to vote yes. Earlier in that , which lasted nearly 24 hours, Laura Colangelo, executive director of the Texas Private School Association, said private schools could deny admission to a child whose mother wasn’t married when she got pregnant.

says the state can’t force a school to modify policies tied to their religious beliefs. If the Maine case goes the religious schools’ way, such rules would be “less necessary,” Cowen said.

“I’m a Christian man. I sing in a church choir. I can still say what these schools want to do is wrong,” he said. “These guys just want a blank check to do what they want, even if it’s leaving some kids and families out.”

A ‘source of balkanization’

The issue was also at the forefront of Oklahoma’s legal fight to open a religious charter school, a debate that both supporters and opponents of the idea expect to eventually wind up back in court.

In April, the U.S. Supreme Court tied 4-4 on the question of whether charter schools are private and can explicitly teach religion. The deadlock allowed the Oklahoma Supreme Court’s decision against St. Isidore of Seville Catholic Virtual School to stand. Though promising not to turn any students away, school leaders said they would only call students by their birth names and pronouns and would refer students with disabilities to their local district if accommodating their needs disrupted class.

Some experts see the prospect of sectarian charter schools as a threat to American values. 

“Public education, including public charter schools, is one of the few things that holds our society together,” said Richard Kahlenberg, who directs the American Identity Project at the Progressive Policy Institute, a think tank. “It’s the common experience for 90% of American schoolchildren.” 

“If you suddenly have … Christian students going to their schools, Jewish students going to theirs, Muslim students going to theirs, that means fewer Christian students come to know Jewish and Muslim students as classmates and friends,” Kahlenberg said in a panel discussion prior to the Supreme Court’s ruling in the Oklahoma case. “Our public schools are already highly segregated by race and class, and this would just layer on religion as a new source of balkanization.” 

‘Infinite number of options’

In Utah, the state’s teachers union sued last year over a new ESA program because they say it “diverts” education funds to schools that discriminate in admissions. In April, a state district court judge ruled the program unconstitutional.

“We firmly believe, and a judge agreed, that public money belongs in public schools,” said Hailey Higgins, communications director for the Utah Education Association.

To choice supporters — and the Trump administration — the more private schools that cater to families’ individual preferences, the better. That’s the argument that the Institute for Justice, a libertarian law firm, along with parents currently in the program, made in to the Utah Supreme Court.

When she learned about the lawsuit, Amanda Koldewyn, an Ogden mother of four, said she felt “anger, frustration and panic.” Her 12-year-old son, who has autism, was getting sick from anxiety in public school and was “bored out of his mind” in class. The Utah Fits All scholarship allowed her to find a curriculum where he can move at his own pace and pay a private math tutor for her daughter. She hopes to use the program for her 5-year-old twins this fall as well.

“I can actually get the resources that aren’t just passable, but are fine tuned to what my children need,” she said. “I get really, really angry at those few teachers who think public school is the only way.”

The debate over whether religious schools in choice programs can refuse to serve families who don’t share their values is also playing out with younger students in Colorado. The state’s universal preschool program requires participating schools to accept students from families regardless of parents’ housing status, income level, or religion, sexual orientation or gender identity. 

Two over the regulation, saying they couldn’t participate in the program because their faith prohibits them from accepting LGBTQ students or parents. That means the state doesn’t pick up the cost for students in those schools. The case is now before the U.S. Court of Appeals for the 10th Circuit. 

In other countries, it’s far more common for students to attend religious schools at the government’s expense. , fully funds Catholic school districts. In European countries like the Netherlands, attend government-funded religious schools.

Many countries place on those schools that choice advocates in the U.S. would resist, explains Sam Abrams, director of the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. Religious schools often follow the same criteria for student admissions as public schools, teach to national standards and submit to monitoring visits.

“It’s all regulated, and you can’t screen kids out,” he said, noting that in recent school choice cases, the conservative justices on the Supreme Court never referenced how these systems work in other countries. “They’re not going to talk about the European system. It forces them to acknowledge that what [the U.S.] is doing is very different.”

Maine’s demands on religious schools depart from the way the tuitioning program used to operate. For decades, Catholic and other religious schools were “willing and active participants in this program,” Keim said. That ended in the 1980s — what she called the “shag carpet-era view of the Establishment Clause” — when the legislature passed a law excluding religious schools.

“For 25 years, Maine families have been knocking at the courthouse door and asking the federal courts to let them back in,” Keim said. 

In 2021, as the Carson case made its way to the Supreme Court, lawmakers amended the to prohibit discrimination against students in all private schools receiving public funds, including religious schools. The real “poison pill,” she said, is a provision that requires religious expression without discrimination. 

“If they’re going to allow a Catholic pro-life club,” she said, “they’re going to have to allow a Catholic pro-choice club.”

If the schools prevail in court, St. Dominic’s won’t be accepting any high school students. While the pre-K through eighth grade school will still operate, the this year due to low enrollment. 

“I’m sure the picture would be different,” Keim said, “if they had been allowed to receive these subsidies over the long term.”

In 2020, when Amy Coney Barrett came before the Senate for confirmation to the U.S. Supreme Court, one of her closest friends told a story about their year together working as law clerks in the nation’s capital.

“That last day when you leave the court, you think, ‘Wow, that’s about the coolest thing that’s ever going to happen to me,’” said Nicole Stelle Garnett. She assisted Justice Clarence Thomas during the 1998 term, the same year Barrett worked under Justice Antonin Scalia. “Now, to see my friend testifying before the Senate Judiciary Committee, to walk back up the steps 21 years later is really, really something.”

Fast forward another five years. Garnett, now a law professor at  the University of Notre Dame, is about to have her own Supreme Court moment. 

On April 30, the court will consider a legal question that has defined her career: Can explicitly religious organizations operate charter schools? At the center of the dispute is St. Isidore of Seville Catholic Virtual School, an online school in Oklahoma that planned to serve about 200 students this year before the state supreme court ruled the decision to approve it violated the constitutional provision separating church and state. 

“This could be an earthquake for American public education,” said Samuel Abrams, who directs the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. As the country experiences a rise in Christian nationalism, a favorable ruling could invite the encroachment of religion not only into education but other areas of civic life that have traditionally been non-sectarian. “If the Supreme Court rules in favor of overturning that decision, the church-state cleavage will disappear. That’s a dramatic development for the First Amendment.”

In a sign of the case’s gravity, the Trump administration filed a in support of St. Isidore last week, arguing that “a state may not put schools, parents or students to the choice of forgoing religious exercise or forgoing government funds.”

But Barrett, who handed President Donald Trump a conservative 6-3 supermajority when she was confirmed to the court, won’t be on the bench to hear it. She recused herself, leaving no explanation for sitting out what could be the most significant legal decision to affect schools in decades. 

Observers believe the reason is her friendship with Garnett, who was an early to the school. While she’s not officially on the case and hasn’t joined any legal briefs in support of it, Nicole and her husband Richard Garnett, also a Notre Dame law professor, are both with the university’s Religious Liberty Clinic, which represents St. Isidore. 

In a deep irony, the longtime friendship between the two women, forged in Catholic faith and a conservative approach to jurisprudence, now threatens to tip the scales away from a cause Garnett has spent her career defending,

The recusal increases the chances that the vote could end in a 4-4 tie, which would leave the Oklahoma court’s decision intact. That outcome would prohibit St. Isidore from receiving public funds and likely send proponents of religious charters looking for a new test case. 

Justices typically do not offer reasons for recusing themselves. A spokesperson for the Supreme Court said Barrett had no comment on the matter.

“I feel bad for Nicole,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston. “This is her life’s work, and it might go to a 4-4 decision.” 

Blackman, a proponent of religious charter schools, has known the Garnetts for years. “Amy knows what Nicole did for this case,” he said. “The case is so significant because it’s an application of both [the Garnetts’] Catholic faith and their views on constitutional law.”

‘A heady experience’

The friendship between Garnett and Barrett developed long before the legal clash over St. Isidore. When Trump nominated Barrett to replace Justice Ruth Bader Ginsberg, how the two first met at a coffee shop the spring before they became high court clerks in the late 1990s. 

“I walked away thinking I had just met a remarkable woman,” she wrote in a for USA Today.

There weren’t too many high-profile cases that year, Garnett said. But one stands out — a complaint that a Chicago ordinance against gang loitering violated members’ due process rights. The , but Barrett and Garnett performed research for dissenters Scalia and Thomas. the local law allowed police officers to do their jobs and it a “small price to pay” to keep the streets safe.

“It’s a heady experience and really hard work,” Garnett told The 74. “But we all liked each other. We socialized together.”

When Trump nominated Barrett in 2017 to serve on the U.S. Court of Appeals for the Seventh Circuit, all 34 clerks from the Supreme Court class of ‘99 — Democrats, Republicans and independents — wrote to the Senate judiciary committee. 

But none knew Barrett like Garnett. Their personal and professional lives have been intertwined for more than two decades.

When Garnett was pregnant with her first child during their year as clerks, Barrett and the other young attorneys threw her a in the court’s dining room for justices’ spouses. Barrett is godmother to the Garnetts’ third child. After their clerkship, Richard Garnett helped to the boutique Washington law firm where he worked. (He later recruited Justice Ketanji Brown Jackson, one of the court’s three liberals, to the .) 

Before Barrett cast her vote for the majority in the that struck down Roe v. Wade, the New Yorker published that described the newest justice as a “product of a Christian legal movement” shifting the court further to the right. The article irked Garnett’s daughter, Maggie, who said it dismissed “a mentor and maternal figure in my life” as a “cold, impenetrable” mouthpiece for conservatives. In a , she wrote that the article portrayed Barrett as “an almost robotic product of her male mentors … rather than as an accomplished and talented jurist in her own right.”  

At Notre Dame, Garnett and Barrett overlapped as faculty members for roughly 17 years. Aside from her focus on religious liberty and education, Garnett also teaches property law. Barrett’s courses focused on constitutional law and the federal courts. 

“She became a lifelong friend,” Garnett said. “She lived around the corner from us and we raised our kids together.”

And when Trump introduced the mother of seven to the nation, Garnett was seated in the Rose Garden along with senators, White House officials and other dignitaries.

Given their intersecting interests, it’s very likely that school vouchers came up in conversation. Until 2017, Barrett served as a trustee at Trinity School at Greenlawn, a classical Christian academy in South Bend, Indiana, that participates in the state’s .

Garnett, meanwhile, was honing legal arguments in favor of expanding such programs. Before joining the faculty at Notre Dame, she worked as a staff attorney for the Institute for Justice, a right-leaning law firm that has led efforts to open school choice programs to religious schools. In one case, the Wisconsin Supreme Court upheld the expansion of to include faith-based schools. 

While at the institute, Garnett also worked on , which challenged Maine’s exclusion of religious schools from a private school choice program. The state won that case, but lost when a subsequent case about the program, , came before the Supreme Court. In Carson, Barrett joined the other five conservative justices in ruling that it was unconstitutional to keep those schools out. 

Garnett, who didn’t work on Carson, said she cried when the family at its center won. 

But even with this victory, Garnett viewed aspects of school choice as unfriendly to religious freedom. She found it troubling that to keep their doors open, many Catholic schools in Indiana to charters, which required them to remove all evidence of their faith.

“Religion has been stripped from the schools’ curricula and religious iconography from their walls,” she wrote in . “There is little doubt that the declining enrollments in Catholic schools are at least partially attributable to the rise of charter schools.”

Her convictions on the role of religion in public life are both personal and professional. She sent her children to Catholic schools in South Bend and views to serve low-income children as vital to urban communities. She captured her years of scholarship on religious liberty in she wrote after Carson: “The Constitution demands government neutrality toward religious believers and institutions. Full stop.”

That view is belied by state laws that prohibit public funds from directly supporting religious schools and that define charters as public schools open to all students. Some critics predict that religious groups running charters would not have to uphold the civil rights protections of LGBTQ students, for example.

Garnett warned that attempts to create religious charters would face litigation for years. But in Oklahoma, Republicans and Catholic church leaders were ready for a fight.

At a time when schools remained shuttered due to COVID, Catholic school leaders in Oklahoma City and Tulsa wanted to expand virtual options and “reach more kids in a big rural state,” she said. A widely-circulated she wrote for the right-wing Manhattan Institute offered a legal path to get there. 

“I think that we found each other,” she told The 74. “I didn’t go looking for a client here. It’s very organic how the whole thing unfolded.”

‘Hot ticket’ 

If other recent school choice cases are any indication, there’s still a good chance the court will overturn the Oklahoma Supreme Court’s opinion. Such a precedent-setting development would have a huge impact on the nation’s educational landscape, said Michael Petrilli, president of the conservative Thomas B. Fordham Institute.

The court could say that “a charter school authorizer can’t turn down an otherwise qualified applicant just because it is religious, or proposes a religious school,” he said. “That would apply immediately to all states with charter laws on the books.”

Garnett dismissed the idea that a victory for St. Isidore will open the floodgates to thousands of religious schools becoming charters. Applicants would still have to meet state criteria for approval, she said.

The ruling “may shed light on other state’s arrangements, but it definitely will not require all states to allow religious charter schools,” she said. “That’s not on the table — and it’s not how the court works.”

But others are not so certain. 

“The implications for education and society could be profound,” said Preston Green, a University of Connecticut education professor.  “It would mean that the government cannot exclude religious groups from any public benefits program.”

With oral arguments approaching, Notre Dame law students who have worked with Garnett over the past two years have already asked if she can get them a seat in the courtroom for such “a hot ticket,” she said. 

She won’t talk about why her friend recused herself from the case, but acknowledged the stakes. 

“My hope is that it won’t go to a 4-4,”  Garnett said “My hope is that they wouldn’t have granted [a hearing] if they thought it might. But I know you don’t make assumptions about anything.”

The case also has large ramifications for the nation’s charter school sector, potentially settling a debate over whether charters are public or private. 

Last summer, the Oklahoma Supreme Court ruled against St. Isidore of Seville Catholic Virtual School. The school appealed the case to the Supreme Court last fall.

A proposed Christian charter school is taking its case to the U.S. Supreme Court, hopeful that a conservative supermajority will offer a sympathetic ear to the notion that schools that practice religion should not be barred from receiving public funds.

and Oklahoma’s filed separate petitions with the court Monday, asking the justices to decide an issue that could not only upset accepted norms about charter schools, but radically shift legal understanding about the boundaries between church and state. 

While the court might not make a call for months, several experts predict that if it takes up the case, the justices in the majority would likely rule in favor of St. Isidore.

“I believe that if the Supreme Court decides to review it … they will reverse the Oklahoma decision and allow the religious charter school,” Martha Field, a Harvard University law professor, said last month on emerging school models held at Harvard. “I would not support such a decision, but I believe it is coming.”

The case centers on a dispute over whether or not a public charter school, where students practice religion as part of the curriculum, violates the Establishment Clause of the First Amendment. In April, Oklahoma Attorney General Gentner Drummond, a Republican, argued that state officials broke the law when they approved the charter — an argument the state Supreme Court backed in June. But attorneys for the school and religious freedom advocates say St. Isidore is essentially a private contractor that receives public funding to offer a service — not an arm of the government. 

“The Supreme Court has made it clear repeatedly in the last few years that if the government opens up a program to private organizations …  it can’t then say ‘But if you’re religious, you’re not eligible,’ ” said Phil Sechler, senior counsel at Alliance Defending Freedom, a conservative Christian law firm and advocacy group that represents the charter board. “That’s essentially what Oklahoma did.”

In response to the petitions, Drummond warned that allowing religious charter schools would open the “floodgates” to non-Christian religions like “radical Islam or even the Church of Satan.”

In its brief, the charter board said the state’s stance toward “minority faiths” is still “open hostility toward religion” and poses a “grave threat” to religious parents.

“Those with progressive values may send their children to progressive charter schools on the state’s dime. Those who subscribe to the principles of Montessori education may send their children to Montessori charter schools for free,” the petition states. “But religious parents may not avail themselves of this same benefit because the would-be charter school they desire is religious.”

‘State actors’

During oral arguments in Oklahoma, one judge asked whether the state was being used as a “test case” to overturn prevailing legal opinions on church-state separation. A national movement of wants the courts to rule in favor of greater religious freedom in schools. 

Americans United for the Separation of Church and State, an advocacy organization, is suing over Louisiana’s law that classrooms post the 10 Commandments, and is currently over Oklahoma state Superintendent Ryan Walters’s mandate that teachers use the Bible in their lessons. 

But one element that could cast doubt on the Supreme Court’s willingness to hear the Oklahoma case is its refusal last year to take about charter schools — one that religious freedom advocates hoped would have paved the way for faith-based charters. 

In , three families sued the school, saying its dress code requiring girls to wear skirts violated their constitutional rights. The charter founders argued that as a nonprofit, the school should be free to enforce rules in line with its traditional values, raising the question of whether a charter school is public or private. 

The U.S. Court of Appeals for the Fourth Circuit said no, and the school appealed to the Supreme Court.

While the justices asked for the U.S. solicitor general’s , suggesting some were intrigued by the issues presented, they ultimately turned it down.

As the school’s founders argued in Peltier, supporters of religious charters say that nonprofits, including churches, don’t automatically become “state actors” because they receive public funds. At that same Harvard conference, Mike Moreland, a Villanova University law professor, offered up an analogy.

“Boeing, by entering into an agreement to produce airplanes as a government contractor for the Pentagon, doesn’t become a state actor,” he said. Charter schools, therefore, don’t “turn into state actors for purposes of First Amendment analysis.”

Those who agree with him point to a 1982 case, , in which the Supreme Court said a private school receiving substantial public funding to educate troubled teens was not acting under the “color of state law” when it fired six employees. 

The Ninth Circuit reached a similar conclusion in a more that involved a charter school, but focused on employment issues rather than what students learn in the classroom. 

Those cases could indicate which way the court would lean if it takes the case, said William Jeynes, an at California State University Long Beach, the third panelist at the Harvard event. 

“The Supreme Court loves precedent,” he said. 

Opponents of religious charter schools say religious freedom proponents are fueling a non-existent debate. 

”State laws are clear,” said Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools. “Charter schools are public schools created by the government, and the government is not allowed to establish any religious public schools.”

‘Incredibly popular’

Former Justice Stephen Breyer, a liberal, raised the possibility of a religious charter school in a in which the court ruled 5-4 that officials could not exclude a Christian school from a state tax credit scholarship program simply because it was religious.

“What about charter schools?” he asked in his dissent, saying that the court’s ruling introduced “uncertainty” about the distinction between public and nonpublic schools. He reiterated his concern in , a 2022 opinion in which the court ruled 6-3 that states with school choice programs can’t discriminate against schools that teach religion.

The case focused on a Maine program that pays families to attend private school if their own communities lack a public high school. Breyer wrote that requiring states to fund religious schools blurred the lines between public and private entities. He asked if that “transformation” means that districts with charters “must pay equivalent funds to parents who wish to give their children a religious education?”

Six months later, Oklahoma’s former Attorney General John O’Connor and state Solicitor General Zach West expanded on the majority’s opinion to say religious organizations should not be prohibited from opening charter schools. When he took office in 2023, Drummond, O’Connor’s replacement, threw out his predecessor’s interpretation.

Since then, Drummond has been at odds with fellow Republicans on the issue, including Walters and Gov. Kevin Stitt. Despite his warning that the charter violates the law, the state’s virtual charter school board voted last October to approve the contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa. That prompted Drummond’s lawsuit.

When the school and the charter board lost, Stitt said the decision “sent a troubling message that religious groups are second-class participants in our education system. Charter schools are incredibly popular in Oklahoma — and all we’re saying is: We can’t choose who gets state dollars based on a private entity’s religious status.”

Even after the state Supreme Court ruled against the school, the state charter board initially refused to rescind its contract and then joined St. Isidore in appealing the decision to the U.S. Supreme Court. 

Under pressure from Drummond, who called the charter “a serious threat to the religious liberty of all four million Oklahomans,” the board finally voided the contract in August. 

While the school was prepared to serve up to 500 students this fall, it received less than half that number of applications.

Despite the court’s traditional deference to existing case law, Field noted that the current justices haven’t shown the for previous opinions they disagree with. Overturning is just one example she cited.  

For someone who clerked for former Chief Justice Earl Warren in the 1960s — when the court prayer and Bible readings in the classroom — she said it’s been disconcerting to see the legal ground shift so radically. 

“It seems that a lot of people here don’t like the Warren court,” she told the Harvard attendees.  “When I went to law school, separatism was the doctrine, and we all believe whatever we learned in law school.”

OKLAHOMA CITY — Oklahoma’s top education official on Thursday ordered all public schools in the state to incorporate the Bible into their curriculum as a historical text.

State said he wants the Bible kept and taught in every Oklahoma classroom, particularly how it is referenced in America’s history and founding documents.

“We’re going to be looking at the Mayflower Compact (and) other of those foundational documents to point to and say, listen, here’s conceptually what the founders believed,” Walters said while speaking with news reporters on Thursday.

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State academic standards for social studies already require schools to teach students about the impact of religion on U.S. society and government.

The academic standards are a lengthy list of topics Oklahoma public schools must teach. Local school districts are allowed the freedom to decide their own curriculum, or how they teach the standards.

Walters’ announcement drew quick opposition from Democratic lawmakers and groups advocating for separation of church and state.

The Oklahoma chapter of the Council on American-Islamic Relations said the order would further marginalize religious minorities in public schools and violate religious freedom. The Muslim civil rights organization has advocated against adding specific religious teachings to the classroom.

“Although we and the American Muslim community recognize the important historical and religious significance of the Bible, forcing teachers to use it and only it in their curriculum is inappropriate and unconstitutional,” said Adam Soltani, director of the Oklahoma chapter. “We adamantly oppose any requirements that religion be forcefully taught or required as a part of lesson plans in public schools, in Oklahoma, or anywhere else in the country.”

State Sen. Carri Hicks, D-Oklahoma City, said the matter could end up in court, costing the state taxpayer dollars. Meanwhile, she said it fails to “provide solutions to the real problems facing our schools,” like the teacher shortage and falling below the regional average in public education funding.

Oklahoma already has been grappling with the role of religion in public schools. The state Supreme Court on Tuesday that was weeks away from opening in the state. The Court found the concept of a religious, state-funded school is unconstitutional and a violation of state law.

Attorney General Gentner Drummond led the legal challenge against opening the Catholic charter school, called St. Isidore of Seville Catholic Virtual School. But when reached for comment Thursday, his office did not raise alarm bells over Walters’ order on Bible teaching.

“Oklahoma law already explicitly allows Bibles in the classroom and enables teachers to use them in instruction,” the AG’s spokesperson, Phil Bacharach, said.

Walters has been a vocal supporter of St. Isidore. He called the Court’s ruling on the Catholic charter school “one of the worst” of its decisions and said the concept of separation of church and state is “a myth.”

Oklahoma Catholic leaders indicated they intend to appeal the ruling. A meeting agenda for the school’s Board of Directors states St. Isidore will “delay opening to students at least until the 2025-2026 school year, as it seeks review by the United States Supreme Court.”

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Oklahoma Voice maintains editorial independence. Contact Editor Janelle Stecklein for questions: info@oklahomavoice.com. Follow Oklahoma Voice on and .

“If you love the Lord and you are excited about teaching …  we would love to talk to you,” Misty Smith, principal of St. Isidore of Seville Catholic Virtual School, says in to prospective educators.

But with the school’s future still tied up in court, and legal disputes likely to continue, it’s unclear whether taxpayers will be picking up the cost this fall. Church leaders are having an “ongoing conversation” about whether to launch the online program as a private school if a court blocks it from receiving state funds, said Brett Farley, executive director of the Catholic Conference of Oklahoma, a public policy organization.

Opponents argue that the charter, approved a year ago by a state board, violates both Oklahoma and federal laws against the government funding of religion. As the principal said in another video, the school plans to provide education through “a Catholic lens.” With rulings in two separate cases against the school pending, however, families are still stuck in limbo. Of the 218 applications the school received as of last week, over 160 have enrolled and another 35 are deciding whether to accept a seat in the school’s inaugural class.

“There are so many things up in the air,” said Joy Stevens, whose daughter Chloe secured a spot through the application lottery. As a contingency plan, Stevens registered her daughter in the Velma-Alma public schools, near their small farm south of Oklahoma City. “I don’t know if we can afford private.”

The state Supreme Court has yet to rule on a lawsuit by Oklahoma Attorney General Gentner Drummond it heard in April. It’s unclear whether that decision will come down before state funds are set to be distributed to the school in August — an estimated $1.2 million, according to the virtual charter school board that approved the application. 

In the second case, an Oklahoma County district court on July 24 will hear from a coalition of parents and advocates seeking an injunction to block the school from opening and receiving those funds. They argue that the school will discriminate against LGBTQ students and those with disabilities as well as families and staff who don’t follow Catholic teachings. 

They celebrated last week when the judge in the case ruled can move forward. 

Judge Richard Ogden denied most of the claims made by defendants who wanted him to dismiss the case. The defendants, including Republican state Superintendent Ryan Walters and the state board of education, assert that the school has promised not to discriminate. 

They argue that the school doesn’t violate laws against the government establishing a religion because St. Isidore is a private organization that will exist with or without the charter.  In addition, parents don’t have to enroll their children.

“No student is required to attend St. Isidore or adopt its beliefs,” they wrote in their motion. “St. Isidore is thus not forcing anyone to ‘submit’ to religious instruction or conditioning education on any ‘religious test.’”

‘A slippery slope’

The state, however, wants to make sure that all public school students receive religious instruction during the school day if their parents wish, as long as they’re not missing core classes. Gov. Kevin Stitt last week clarifying that districts can allow students to take up to three religious-related classes each week — and receive elective credit.

Ohio-based Christian nonprofit Lifewise Academy, for example, provides “evangelical Bible education” and of the Oklahoma law. The organization will expand to offer classes in 23 states this fall, but some opponents say allowing students to leave school during the day is disruptive and puts them further behind academically. 

Walters, however, quickly warned the , which plans to make its available to students, that it is not welcome. In 2019, the IRS granted the temple , just like other churches. But Walters doesn’t consider satanism a religion.

“I know that you guys like lying, and that’s the central part of your belief system,” Walters addressed the organization in . “But you will not be participating with our schools.”

Interest from the Satanic Temple shouldn’t necessarily come as a surprise to Walters or Stitt. Drummond predicted that state leaders would open the door to non-Christian organizations if they pushed for more religious freedom in public schools.

In an opinion last year, he said a religious charter could “create a slippery slope” and obligate the state to spend public dollars on charter schools “whose tenets are diametrically opposed” to the beliefs of many Oklahomans.

St. Isidore, meanwhile, is preparing to open and is “ordering what is needed for students and staff to be successful,” said Lara Schuler, senior director of Catholic education for the Archdiocese of Oklahoma City, which applied for the charter along with the Diocese of Tulsa. 

Teacher contracts won’t start until Aug. 1, and according to the school’s website, leaders are still looking for a fourth grade teacher and high school math, physics and chemistry teachers. At this point, the school is still well under its first-year capacity of 500 students. 

Stevens said she’s been in touch with staff to ask how her daughter can meet other incoming students and “study partners” over the summer. The school is planning two “all-school masses” during the year, according to its , and will form local parish hubs for additional worship and in-person gatherings, like field trips, for students. 

Stevens said Chloe, who has been attending public school, is worried about whether St. Isidore will be academically tougher than what she’s used to.

“Her only concern has been how rigorous the education looks. She’s worried she’s not going to be third in her class or second in her class,” Stevens said. 

Some involved in the litigation, however, think the school should delay its opening until the legal matters are settled.

“I think it’s unsettling to enroll and start students in a school, which is under court review — just seems impractical,” said Robert Franklin, chair of the Oklahoma Virtual Charter School Board. Though a defendant in the case before the state Supreme Court because of his position, he voted against the charter application. “Using students and families as chess board pieces seems unnecessary.”

That’s the date the state will begin to transfer public funds to St. Isidore of Seville Catholic Virtual School to hire teachers, plan curriculum and prepare to open in August. Members of Oklahoma’s Virtual Charter School Board, he said, “betrayed their oath of office” last June when they voted 3-2 to approve a charter with the Catholic church to open the school. 

But making arguments that will likely reach the nation’s high court, the attorney for the school said St. Isidore is a private entity and signing a contract with the state did not turn it into a public one. 

“St. Isidore was a private organization before it received a charter. The state did not create it,” said Michael McGinley. “It will continue to exist if the state ever terminates the charter. It would have continued to exist if the application had not been granted.”

For nearly two hours, both sides presented very different views of St. Isidore. Attorneys for the charter board and the school portrayed it as a natural outgrowth of a recent “trilogy” of U.S. Supreme Court decisions that favor faith-based schools seeking public funds. But to Drummond — and to advocates for public schools — the case differs from those opinions in that it would not only redefine charters but upset a founding constitutional principle. 

“This case is not about exclusion of a religious entity from government aid,” he said. “It is about the state creation of a religious school which unequivocally establishes religion.” 

Some of the justices were clearly skeptical of the school’s argument and appeared uncomfortable with the position they found themselves in.

“Are we being used as a test case? Sure looks like it,” said Justice Yvonne Kauger. 

And Justice Noma Gurich pushed back on arguments in favor of allowing the school to open.

“Where is the choice for taxpayers in Oklahoma not to support the Catholic Church or the Baptist Church, or the Episcopal Church or the atheist or any other church?” she asked.

What’s clear is that for Oklahomans and the nation more broadly, the case pushes school choice into a new arena.

“I feel that so much is at stake, as a parent, as a taxpayer, but also as an American,” said Erin Brewer, who has two students in the Deer Creek Public Schools, north of Oklahoma City. She’s also a plaintiff in challenging the legality of the school. “We’re talking about the fundamentals of our democracy. We’ve always had the promise that government would never compel religion upon us.”

But Phil Sechler, an attorney with Alliance Defending Freedom, who represents the charter board, said that because families apply to attend, the state isn’t compelling them to do anything. That point echoes arguments made in and , two cases in which the U.S. Supreme Court ruled in favor of parents who wanted to use school choice programs to attend parochial schools.

“St. Isidore only gets funds if there is enrollment,” he said. “That breaks the circuit between religion and government.”

One argument against the school has been that if the state allows St. Isidore to open, it would have to approve applications from schools representing other religions. But Sechler dismissed concerns about opening the “floodgates” to Muslim schools, atheist schools and others. 

Organizations seeking to open a charter, he said, still have to meet “ample neutral criteria” and provide a quality education that meets a need. For example, they are required to have a financial plan, hire qualified teachers and administer tests.

Oklahoma offers a universal that provides up to $7,500 per student for private school tuition, but McGinley said for some families, that program isn’t enough. They can’t afford the rest of the tuition. 

“That’s a real hardship for a lot of families,” he said. Charter schools “provide an education where families don’t have to come up with that difference.”

Preston Green, a University of Connecticut education and law professor, called McGinley’s argument a “brilliant framing” that helps the school’s case. He added that if the question eventually reaches the U.S. Supreme Court, he could see the conservative justices siding with the Catholic church.

“It just wouldn’t surprise me,” he said. But he added that the Oklahoma charter case is about more than just religion. It’s also about public education funding. “There’s no real consideration about the impact on the public school system. This could really create some fiscal strain.”

St. Isidore plans to serve 500 students in its first year, and so far, has enrolled or received inquiries about applying from 200 students. Enrollment would increase each year until it reaches 1,500 by the 2028-29 school year. 

Green also addressed the question, which Justice Dana Kuehn raised, of whether the state could simply “cure the problem” by not having charter schools at all. Some legal experts have suggested that blue states would be more apt to go that route than to approve religious charters. 

But Green thinks that’s far-fetched.

“Charters are such a part of the school environment,” he said. “In Black and brown, especially Black communities, charter schools are very popular, and the concerns about separation of church and state just do not resonate as much.” 

While the justices asked a lot of questions about state law and precedent, Nicole Garnett,  a University of Notre Dame law professor who was instrumental in preparing the church’s application, said it’s likely the case won’t end in Oklahoma.

“The pivotal issue in their minds appears to be whether St. Isidore’s approval is consistent with Oklahoma law, but they also seemed to understand that the federal constitution must ultimately control the outcome of the case,” she said. “We are hopeful the court will rule soon and allow St. Isidore to begin serving kids in the fall.”

That’s why they’ve applied to send their daughter Chloe to St. Isidore of Seville Catholic Virtual School, a first-of-its kind religious charter at the center of a national dispute over separation of church and state. 

Chloe is preparing for her confirmation at the end of April, a statement of her faith. Between Sundays, the family listens to a “Bible in a Year” from a Minnesota priest with a large social media following. But her mother worries about students at her daughter’s public school being sexually active and wants her to get the “wholesome” influences she thinks only a Catholic education would provide.

“Kids at that school don’t have the same values that we have. They’re constantly on their phones,” Joy said. “I’m not doing this to be some kind of trailblazer; I’m doing this for my kid.”

Those are typically among the reasons many parents opt for private and faith-based schools. But on Tuesday, the Oklahoma Supreme Court will hear arguments in a precedent-setting case that examines whether publicly funded charter schools — which must uphold the same civil rights as traditional schools — can explicitly endorse religion. Republican Attorney General Gentner Drummond will that the state’s Virtual Charter School Board violated both state and federal law when it voted 3-2 to approve the school’s charter application last June. Attorneys for the school, however, say preventing it from opening this fall would be religious discrimination that flies in the face of recent U.S. Supreme Court opinions.

Parties in the case recognize the significance of the moment. “It’s part of history, so I’m glad I’m going to be sitting there to watch how this unfolds,” said Robert Franklin, chair of the virtual charter board and one of two members to vote against the application. He supports school choice, but said “in Oklahoma we’re pushing this as far and as fast as we possibly can. I think it’s going to have some significant consequences.”

Notably, none of members who voted in favor of the school remain on the board. Republican Gov. Kevin Stitt appointed two, and , to his administration. The third, Scott Strawn, left to work at Baylor University in Texas.

To many observers, Bobek, who Stitt previously appointed to the state board of education, should not have been able to vote on the application. Republican House Speaker Charles McCall appointed him to the charter board just days before the vote, replacing a retired superintendent. Franklin asked him to recuse himself, but Bobek refused. According to Drummond’s office, his appointment should until five months later.

One of the most outspoken evangelists for the school, state Superintendent Ryan Walters, also won’t be represented before the court. But that’s not for a lack of trying. Walters, who dismisses the separation of church and state as a “,” failed three times to convince the court to carve out some time for the state education department during Tuesday’s oral arguments. He reasoned that since he supports the school, Drummond’s position isn’t the only one that matters. The school, however, joined Drummond in opposing the superintendent’s request, and Chief Justice M. John Kane turned Walters down.

The Catholic church’s effort to open St. Isidore — named for the of the internet — has split constitutional scholars and school choice experts from the start.

Religious freedom advocates say recent U.S. Supreme Court decisions laid the foundation for the nation’s first religious charter school. In Espinoza v. Montana Department of Revenue — a 2020 opinion about whether a family could use a tax credit scholarship at a faith-based school — the court said a “state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

That’s where the school’s argument breaks down, Drummond wrote in .

“St. Isidore is not a ‘private school.’ Under Oklahoma law, it is [a] public school,” he wrote. “Therefore, these recent U.S. Supreme Court cases have no relevance to this dispute.” 

Despite Oklahoma being a deeply red state, its high court tends to lean . Regardless of how the Oklahoma justices rule, however, observers expect the issue to end up in federal court. 

Issues of discrimination

Drummond’s lawsuit is not the only effort to stop the school from opening Aug. 12. Public school advocates, parents and religious leaders filed in October against the charter board, Walters and the state education department. 

The case “raises important issues” about discrimination not addressed by Drummond’s lawsuit, said Alex Luchenitser, associate vice president of Americans United for Separation of Church and State, one of the organizations representing the plaintiffs.

The school, which is holding an until Wednesday, will accept students with disabilities, but its says that services or accommodations for students can’t be “in opposition to church teaching.” The Archdiocese of Oklahoma City declined to elaborate. In addition, the school might not accept students whose services would “significantly alter the regular classroom process.”

Last year, before the board approved the school, Andrea Kunkel, general counsel for a state school administrators organization, warned that charter schools can’t ignore special education law.

“Although St. Isidore may not have readily available all services that future students may need, it has the legal obligation to either provide and pay for those services through a different model or arrange for them to be provided by someone else and pay for them,” she wrote in a letter to the board. 

LGBTQ students can attend, but staff will only use pronouns and nicknames that match their biological sex at birth, a stance that echoes Walters’s position on gender identity issues. The state board passed a rule in October giving members final say over students’ requests to change sex or gender designations in school records. One transgender student is . The charter school will also enforce a dress code requiring clothing to “correspond to the student’s biological sex.”

Those rules “are strong grounds for blocking the planned operation and state funding of the school,” Luchenitser said. Their case, he added, reflects the views of taxpayers, parents and others “who will be harmed if St. Isidore is allowed to operate and receive state funds.”

No hearings have been held in that case, which is in state court, but last week, the defendants asked Judge Richard Ogden to dismiss it. 

St. Isidore’s student/parent suggests that students who don’t adapt well to online learning will be encouraged to return to their district schools. 

But Joy Stevens expects that her daughter, who has been homeschooled and attended another Oklahoma virtual charter school during the pandemic, will do well.

Like many students who prefer online school, Chloe has a hectic schedule. The 13-year-old is a competitive gymnast, spending several hours a week in training. She is learning to fly a plane and helps tend to her family’s farm animals and garden.

Her mother says the family would have used Oklahoma’s tax credit scholarship program to pay for private school tuition.

But “there’s just no option out here,” Stevens said. “If Chloe is accepted or chosen in the lottery, it is a sure sign of God’s will for her and our family.”

An Oklahoma state board voted Monday to approve a contract for the nation’s first Catholic charter school. The vote by the Oklahoma Statewide Virtual Charter School Board moves the St. Isidore of Seville Catholic Virtual School closer to opening in the fall of 2024. 

But a lawsuit over the legality of the school could thwart those plans. The board “is continuing on a misguided path to create the nation’s first religious public charter school in clear violation of Oklahoma law and the state’s promise of church-state separation and public schools that are open to all,” the advocacy groups suing over the application, including the American Civil Liberties Union, said in a joint statement. 

Defendants, including the virtual charter board, the Oklahoma State Department of Education and state Superintendent Ryan Walters, have filed a motion to dismiss the case. A hearing on those motions is scheduled for Dec. 21.

Oklahoma public school advocates filed Monday challenging the legality of the nation’s first explicitly religious charter school.

The petition, filed in Oklahoma state court, seeks to stop authorities from moving forward with opening a virtual Catholic charter school.

The , including the nonprofit Oklahoma Parent Legislative Action Committee, parents and religious leaders, say St. Isidore of Seville Catholic Virtual School would violate Oklahoma law and potentially discriminate against LGBTQ students and those with disabilities. 

“We’re witnessing a full-on assault on church-state separation and public education — and religious public charter schools are the next frontier,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State, which is representing the plaintiffs along with the American Civil Liberties Union. 

The attempt to open a religious charter school, she added, is “one piece of a larger Christian nationalist agenda to infuse Christianity into public schools.” She cited  Texas’s decision to allow in public schools as another example.

Catholic church leaders in Oklahoma say they’re ready for what could be a long legal battle — one that was expected even before the state’s Virtual Charter School Board voted 3-2 in June to approve the application. 

“News of a suit … comes as no surprise since they have indicated early in this process their intentions to litigate,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization representing the Archdiocese of Oklahoma City and the Diocese of Tulsa. “We remain confident that the Oklahoma court will ultimately agree with the U.S. Supreme Court’s opinion in favor of religious liberty.”

The lawsuit, which names members of the Oklahoma Virtual Charter School Board, state Superintendent Ryan Walters and the state education department, is the latest development in a national debate over whether charter schools can legally practice religion. 

Oklahoma Attorney General Gentner Drummond advised the board that approving the application would violate the state’s ban on supporting religious schools with public funds. As a result, the board sought outside legal counsel and last month voted to hire Alliance Defending Freedom. The conservative law firm has participated in some of the more high-profile cases before the U.S. Supreme Court, including the that rolled back abortion rights and , in which the court ruled that a Colorado graphic designer has the right to refuse to make a wedding website for a gay couple. 

Walters said in a statement that the lawsuit amounts to religious persecution.

“It is time to end atheism as the state-sponsored religion,” he said. “A warped perversion of history has created a modern day concept that all religious freedom is driven from the classrooms.”

But in a call with reporters, Rev. Lori Walke, senior minister of Mayflower Congregational United Church of Christ in Oklahoma City, said the Constitution protects those who don’t wish to practice religion.

“We have made a decision as a country to not coerce children into praying to a specific deity or in a specific tradition,” she said.

The Supreme Court last month declined to hear a North Carolina case that argued charters are private, a distinction that was expected to bolster the argument of those who say charters can be religious. 

The Oklahoma attorney general’s office challenged the validity of the charter vote after Brian Bobek, the member who tipped the outcome in favor of the Catholic church, was appointed just days before the meeting and opted not to recuse himself. According to Drummond, the law says Bobek’s appointment shouldn’t have taken effect until November.

Before the board approved the application, they asked the applicants to strengthen their proposal for serving students with disabilities. But the plaintiffs say the school hasn’t committed to serving students who may need in-person learning.

“I don’t want my tax dollars to fund a charter school that won’t commit to adequately accepting and educating all students,” Michele Medley, a mother of three, said in a statement. Two of her children are autistic and one identifies as LGBTQ.

The application states that the school plans to fully teach the Catholic faith, but Farley said claims that the school won’t serve students with disabilities are “unfounded.”

“The whole idea is that we want to take the education program that we’ve been running for a century and put it online,” he told The 74 before the board’s vote. “Partnering with the state makes that possible.”

The idea for a Jewish charter school in Oklahoma could gather steam following last week’s hotly contested vote to approve a virtual Catholic charter school in the state.

“This is the logical progression in terms of what the Constitution says,” said Peter Deutsch, who veers sharply from his party on the issue. “I still believe in a lot of things the Democrats believe in, but school choice is a civil rights issue in this generation.”

A Jewish charter would allow Deutsch to offer families something he couldn’t when he founded Ben Gamla Charter School in Hollywood, Florida, in 2007 — an education not only focused on Hebrew language, culture and history, but the tenets of Judaism. 

It also opens a window into a sometimes uncomfortable intersection of church, state and market forces as Oklahoma pushes the nation into uncharted legal territory.

“I always know it’s a hot topic when my phone blows up before it’s on the cover of the Wall Street Journal or CNN,” Maury Litwack, founder of Teach Coalition, said Friday during about the Catholic charter. With groups in Florida, Maryland, New Jersey, New York and Pennsylvania, the coalition is affiliated with the Orthodox Union, which supports synagogues and youth programs. 

Deutsch visited Oklahoma in January to meet with Jewish leaders. But not all groups share his interest. After last week’s vote, the Jewish Federation of Greater Oklahoma City, a nonreligious group, called the charter board’s decision unconstitutional. 

The Statewide Virtual Charter Board voted 3-2 to approve the St. Isidore of Seville Catholic Virtual School despite warnings from Attorney General Gentner Drummond that it violates state law.

Drummond is currently . In his opinion, a board member added just three days before the decision technically shouldn’t have voted because state law says new appointments don’t take effect until Nov. 1. Bob Bobek, a former state board of education member, replaced Barry Beauchamp, a retired superintendent. Before the vote, Robert Franklin, the board’s chair, asked Bobek to recuse himself, but he refused. 

The possible invalidation of the vote would likely be only a temporary setback because the Archdiocese of Oklahoma City and the Diocese of Tulsa can appeal to the state board. Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization, said he has even “more confidence in that scenario” because Gov. Kevin Stitt, who the application, appointed the board members.

The case for religious charters could also get considerable ballast if the U.S. Supreme Court agrees to hear a that asks whether charter schools are public or private. On June 22, the U.S. Supreme Court will discuss whether to hear Charter Day School Inc. v. Peltier, in which a charter school argues that because it’s a nonprofit, it should be free to enforce a dress code requiring girls to wear skirts. 

Both charter leaders and advocates for religious freedom say the court could help settle the debate over whether charters can explicitly teach religion. If the court declines to hear it, a decision by the U.S. Court of Appeals for the 4th Circuit that charters are public schools acting on behalf of the state would stand.

“The 4th Circuit is a major loss” for those pushing for religious charters, said Derek Black, a University of South Carolina law professor. “And if the Supreme Court declines to hear it, that is a major affirmation of that loss.”

But others agree with Deutsch that some parents want publicly funded educational options that include faith-based schools.  

“Yes, we have to follow the law,” Lynn Norman-Teck, executive director of the Florida Charter School Alliance, said about the that charters be nonsectarian. But she added that charter schools “absolutely” have to understand parent demand “and the evolution of education.”

She remembers when Deutsch was trying to convince the Broward County Board of Education to approve the first Ben Gamla school, two years after he left Congress following a failed Senate run.

Some worried it would be hard to divorce the instruction of Hebrew, the language of Judaism, from teaching the faith itself.

Eleanor Sobel, then a school board member and later a state senator, was among the most outspoken opponents, telling reporters that it would be to monitor whether Judaism was actually part of the curriculum. Even after it opened, the board told the school to until officials were satisfied that teachers weren’t advocating religion. The restriction a few weeks later.

Norman-Teck said she doesn’t hear those concerns anymore and that Ben Gamla, now a network of six schools, serves a diverse population including Black and Caribbean students. 

“They proved the board wrong,” she said. “They were very careful that that line wasn’t crossed.”

But a lot has changed in Florida in 16 years. If he was developing the school today, Deutsch said he would establish “a Jewish voucher school” because of the explosion of private school choice in Florida. In fact, in Florida’s Jewish day schools were receiving a state scholarship even before Gov. Ron DeSantis signed legislation in March that made all students eligible for a voucher or education savings account worth about $8,500.

Ironically, an Oklahoma charter would allow Deutsch to accomplish something his critics in Florida feared he would do there: create a public school with an explicitly Jewish curriculum.

With the political hurdle in Oklahoma largely eliminated, Deutsch said his biggest problem might be practical: finding enough interested Jews to fill a school.

“I spoke with every Jew I could find near Oklahoma City,” Deutsch said. Currently, that’s a small number; of Oklahoma’s nearly 4 million residents are Jewish. But he added, “There are families that I believe would move to Oklahoma if there was a Jewish religious charter school.”

Friday’s virtual webinar featured Michael Helfand of Pepperdine University and Notre Dame University’s Nicole Garnett — both law professors who focus on religious liberty. Garnett argues religious organizations that want to open charters should be able to receive public funds, much like faith-based adoption agencies and soup kitchens.

But Helfand is less convinced that if the Supreme Court takes up the North Carolina case, justices will rule that charters are private. Despite recent decisions favoring public funds for religious schools, he expects the court will decide it’s time for some “boundaries on this kind of general momentum.”

With its 3-2 vote in support of the St. Isidore of Seville Catholic Virtual School, Oklahoma’s Statewide Virtual Charter School Board created a controversial precedent, allowing public funds to support an explicitly Roman Catholic curriculum.

While considered a victory for religious conservatives, the move immediately drew criticism from the state’s Republican attorney general, who called the decision “contrary to Oklahoma law and not in the best interest of taxpayers.”

“It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars,” Attorney General Gentner Drummond said in a statement. “In doing so, these members have exposed themselves and the state to potential legal action that could be costly.”

Americans United for Separation of Church and State said it is already preparing a legal challenge. But that didn’t stop those who have worked on the application since last year from savoring the moment.

“We are elated that the board agreed with our argument and application for the nation’s first religious charter school,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization. “Parents continue to demand more options for their kids, and we are committed to help provide them.”

The proposal, which the the Archdiocese of Oklahoma City and the Diocese of Tulsa first submitted in January, has galvanized advocates for religious freedom and divided the charter school community.

Some see faith-based charters as a natural outgrowth of a string of Supreme Court decisions that have increasingly allowed public funds to support private schools. But a from the Biden administration in a case that could be reviewed by the court pushed back on any suggestion that charter schools are private entities. Charters are “units in the public school system,” wrote U.S. Solicitor General Elizabeth Prelogar.

In a deep red state, where board members are politically appointed, that argument proved less than persuasive. 

The political nature of the board sparked some discussion prior to Monday’s vote as opponents of the application accused its backers of “stacking” the panel to ensure the charter’s passage. 

On Friday, House Speaker Charles McCall , who supports the application, to replace Barry Beauchamp, a former superintendent of the Lawton Public Schools whose term had expired.

Board Chair Robert Franklin, who voted against the application, asked Bobek to recuse himself “in an effort to avoid the perception and appearance of political manipulation related specifically to this vote.”

Bobek refused and voted in favor of the charter. 

During public comments, Erika Wright, founder of the Oklahoma Rural Schools Coalition, said his addition “undermines public trust in our representative democracy and … promotes government corruption and backward dealings.”

Both Gov. Kevin Stitt and state Superintendent Ryan Walters have been enthusiastic supporters of the application.

In a to Drummond, Stitt wrote that the state law prohibiting religious charter schools forces organizations to choose between receiving a public benefit and following their faith.

Stitt argued that the state shouldn’t wait for the U.S. Supreme Court to decide whether it will weigh in on a North Carolina case, , which revolves around the question of whether charter schools are public or private.

The board for Charter Day School Inc., founded in 1999 to offer a traditional approach to education, argues that because it’s a nonprofit organization, it should have flexibility to enforce a strict dress code, including skirts for girls. But the American Civil Liberties Union, which sued on behalf of three families, called the dress code discriminatory. The U.S. Court of Appeals for Fourth Circuit ruled that charter schools are “state actors” and must protect students’ constitutional and civil rights. 

If the Supreme Court determines that charters are private, experts believe it could bolster the argument that they can adopt an explicitly religious curriculum.

Prelogar, responding to the court’s request, took a firm position that charters are required to uphold the same constitutional and civil rights laws as traditional public schools. She urged the court not to hear the plaintiff’s appeal of the lower court decision.

The court has not yet announced whether or not it will hear the case. Nicole Garnett, a University of Notre Dame law professor who supports religious charter schools, called Prelogar’s opinion “a good brief” and said it could persuade the court to “take a pass.”

But the Oklahoma board opted not to wait. 

Assistant Attorney General Niki Batt, who provided legal advice to the board, noted that the state would have to “customize” the charter school contract in multiple ways to accommodate the school’s religious affiliation. 

“You’re an executive branch agency,” she told the board Monday. “It’s not our job to make the law and it’s not our job to interpret the law. That’s what the courts do.”

But John Meiser of Notre Dame’s Religious Liberty Initiative, told the board that the government can’t discriminate against religious organizations that want to run charter schools.

“The entire point of the charter program,” he said, “is to incentivize and support private organizations to come create new innovative diverse learning opportunities.”

Some leaders of the charter community took issue with that argument. 

“The Archdiocese of Oklahoma City is trying to make charter schools into something they are not,” said Nina Rees, president and CEO of the National Alliance for Public Charter Schools. “We stand ready to support charter school advocates on the ground in Oklahoma as they fight to preserve the public nature of these unique schools and protect the religious and civil rights of the students and teachers who choose them.”

“It will go to [the] courts to ultimately decide,” Robert Franklin, chairman of  the five-member Statewide Virtual Charter School Board, said during a two-hour meeting Tuesday.

The board unanimously turned down the application from the Archdiocese of Oklahoma City to open the St. Isidore of Seville Catholic Virtual School, giving them 30 days to revise their plan. Its remaining questions largely sidestep the church-state issues that have galvanized the nation’s attention. Instead, they deal primarily with more basic K-12 issues, like special education services, internet for students in rural areas and academics.

Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization, said most of those areas have already been addressed and won’t take 30 days to resolve. He has on whether the school would allow LGBTQ students and staff. If the board ultimately rejects the application, the archdiocese can then appeal to the state board of education.

“This is far from over,” he said, adding that the request for revisions is typical. 

The attention to the vote comes not just from those who argue the proposal would violate the First Amendment, but also from the broader charter community. Opponents say that as public schools, charters . A charter, they say, is not the same as a private, religious school that students attend with a voucher because, in the latter case, the parent, not the government, makes that choice. Supporters of the concept contend that states shouldn’t discriminate against religious organizations and that granting the charter would lead to greater accountability for religious schools accepting public funds. 

‘A snowball’

The vote followed public comments from six opponents of the application, including religious leaders. They argued that approval would compromise religious liberty and eventually lead to brick-and-mortar religious charters.

“We’re going to watch this decision roll down a hill, and it’ll turn into a snowball that’s so big it can’t be controlled anymore,” said Rev. Shannon Fleck, executive director of the Oklahoma Conference of Churches.

Gov. Kevin Stitt supports the application. But in newly elected Attorney General Gentner Drummond withdrew an opinion from his predecessor indicating the board would be on solid legal ground if they approved it. 

During the meeting, no member of the public backed the proposal. State Superintendent Ryan Walters, a non-voting member of the board, branded opponents “radical leftists” whose “hatred for the Catholic Church blinds them from doing what’s best for kids.”

Franklin rejected that view.

“No disrespect to you,” he said, “but I didn’t hear a radical position, nor did I hear an attack to the Catholic Church.”  

Deputy Attorney General Niki Batt, counsel to the board, spelled out that current law states charter schools are nonsectarian and that public schools must be free from religious control. She said she understood how the members could be confused by the conflicting opinions. 

Board Member Scott Strawn suggested there’s “more gray” on this issue than Batt advised and wondered if he could be personally sued “even if there’s a good faith disagreement about unsettled law.”

Franklin noted that members are free to seek individual legal representation. 

“Each of us [has] to make our own decisions,” he said. 

Phil Bacharach, spokesman for Drummond’s office, said “the attorney general naturally would defend the state and the constitution.”

Drummond hopes the U.S. Supreme Court will agree to hear a North Carolina case, , which addresses whether charter schools are public or private, and could fundamentally alter the choice landscape in the U.S. The court is currently waiting on the Justice Department to weigh in on the case, which is expected this spring. 

In a statement, Rachel Laser, president and CEO of Americans United for Separation of Church and State — one of the organizations that has threatened to sue if the board grants the charter — said officials made the right call — for now. But the organization remains concerned the board will ultimately approve it.

“It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families than the state establishing the nation’s first religious public charter school,” she said. “This would be a sea change for American democracy.”

Attorney General Gentner Drummond last week withdrew his predecessor’s supporting an application for a Catholic virtual charter school, saying he was uncomfortable advising the charter board to violate the state constitution’s ban on funding religious schools. Approval of such a school could “create a slippery slope” and require the state to spend public dollars on charter schools “whose tenets are diametrically opposed” to the beliefs of many Oklahomans, to Rebecca Wilkinson, executive director of the Statewide Virtual Charter School Board. 

Wilkinson had no comment on the withdrawal of the opinion. But Brett Farley, executive director of the Catholic Conference of Oklahoma, a policy organization, said representatives from the Archdiocese of Oklahoma City plan to meet with her before the board’s March 14 board meeting to discuss “procedural questions.”

Gov. Kevin Stitt and state Superintendent Ryan Walters disagree with Drummond’s suggestion that the ultimate authority on whether the state can allow a religious charter school is the U.S. Supreme Court. The justices are considering whether to hear a 4th Circuit Court of Appeals case that focuses on whether charter schools are public or private. Drummond said he hopes they do. In the meantime, even if the state’s virtual charter board approves the application, a legal challenge is likely to follow.

“We would certainly give very serious consideration to filing litigation if the application is approved, in consultation with affected Oklahoma taxpayers, parents, educators and others,” Alex Luchenitser, associate vice president and associate legal director at Americans United for Separation of Church and State, said in an email to The 74.

Kenneth Upton, Americans United’s senior litigation counsel, urged the charter board during its Feb. 14 meeting to reject the application for St. Isidore of Seville Catholic Virtual School. As public schools, he said, charters are subject to the First Amendment and, therefore, must “be neutral on issues of religion.”

He summarized the question raised in , the 4th Circuit case from North Carolina. 

In that case, the that charter schools act on behalf of the state, just like traditional schools. But the Leland, North Carolina, charter school argues that because it’s a nonprofit, it should have the flexibility to adopt a dress code requiring girls to wear skirts. Families sued over the rule, saying it violated girls’ civil rights.

“Even if charter schools were private entities instead of public schools, they still are state actors under U.S. Supreme Court precedent,” Upton said.

That means, he said, that charters can’t teach religion, sponsor prayer, discriminate based on religion or require students to take part in religious activities. 

The Supreme Court is waiting on the Biden administration’s opinion on the case before deciding whether to hear it. To Aaron Streett, Charter Day School’s attorney, that’s encouraging.

“It indicates that the court views this as an important case that may merit further review,” he said. “Given that the court denies 99% of petitions outright, the court’s expression of interest here is a positive sign.”

filed an amicus brief stressing the gravity of the decision before the court.

“The question presented in this case … warrants this court’s attention because it may dictate whether such schools can continue to exist,” they wrote. 

The opinion from U.S. Solicitor General Elizabeth Prelogar is expected in the spring.

For now, it’s unclear whether the virtual charter board in Oklahoma will proceed with a vote on the archdiocese’s application. If it does, just three politically appointed board members will make the decision. Two seats are vacant.

Walters, a non-voting board member, said he believes “parents should have the choice to send their children to schools of faith.”

Stitt said he stands by former Attorney General John O’Connor’s December opinion, which suggested that recent Supreme Court rulings on school choice provide a legal foundation for a religious charter school.

In Friday, Stitt said he disagrees with Drummond’s interpretation of the law and “100%” supports the charter application. 

“I think that’s great, just like if the Jewish community wants to set up a charter school, or the Muslim community,” he said. “I’ve got friends across all walks of faith.”

The Catholic Archdiocese of Oklahoma City plans to apply this month to operate a virtual charter, acting on a recent state that says religious organizations shouldn’t be prohibited from doing so. The state’s Virtual Charter School Board could make a decision as soon as mid-February.

Advocates for religious charters said they began planning their strategy over a year ago as the conservative supermajority on the U.S. Supreme Court began to flex its judicial muscle. For the second time in two years, the court agreed to hear a school choice case and later sided with Maine families seeking to use tuition vouchers to attend religious schools.

“We’re not idiots. We know how things are going to play out,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, which focuses on how public policy impacts the church. “We’ve looked at all the [school choice] options out there. Expanding charter options has always been on the short list.”

Even though it’s non-binding, the opinion from now-former state Attorney General John O’Connor and Solicitor General Zach West moves the discussion over religious school choice into a new arena. Recent Supreme Court rulings prohibit states from excluding religious groups from school choice programs. But allowing sectarian instruction in a public school, some legal experts say, goes too far. “Catastrophic” is how Derek Black, a University of South Carolina law professor, described it in .

With charter leaders expecting similar moves in other states, some advocates worry the new direction could splinter a movement that has already drawn frequent criticism

“Public schools have never been able to, and cannot now, teach religion, require attendance to religious services or condition enrollment or hiring on religious beliefs,” said Nina Rees, president and CEO of the National Alliance for Public Charter Schools. Supreme Court precedent regarding public funding for private schools, she added, “simply does not apply to public charter schools.”

Farley said he expected that kind of opposition, but also sees “green lights all around for the movement to press ahead.” 

In Louisiana, for example, charter leaders are watching to see what unfolds in Oklahoma.

“We’ve got large Catholic schools. We’ve got Pentecostals. We’ve got Baptists. We’ve got it all going on,” said Caroline Roemer, executive director of the Louisiana Association of Public Charter Schools. “Absolutely, we’ll see some applicants that lean in on that opportunity.” 

In Oklahoma, Farley said the archdiocese was further encouraged last year when it looked like voters would re-elect Republican Gov. Kevin Stitt, a fervent proponent of school choice. Farley consulted Nicole Stelle Garnett, a University of Notre Dame law professor and leading voice for religious charter schools. She is also a colleague of Supreme Court Justice Amy Coney Barrett, who taught at the law school.

That sparked the Oklahoma City archbishop’s November 2021 letter to the Statewide Virtual Charter School Board, asking if it would consider an application from the archdiocese. The board then sought the attorney general’s opinion.

While some Catholic schools around the country previously converted to charters, they only provide a secular education. For example, Barrett, a conservative Catholic, is affiliated with a church group that has helped . And some Hebrew language charter schools in their afterschool programs. But Black said there’s a big difference between a faith-based organization running a secular charter — likely allowed under the Supreme Court’s rulings in and — and one that would, as Farley said, weave Catholicism into its entire curriculum.

What Farley describes, Black said, “does not involve discrimination based on religious status. Rather, it involves someone who wants to change public education into religious education.”

The U.S. Department of Education did not comment on the potential application.

says a charter school must be “nonsectarian in its programs, admissions policies, employment practices, and all other operations” and “not affiliated with a sectarian school or religious institution.” 

Black said that, if approved, the archdiocese’s school would violate the Constitution’s ban on government support of religion. 

“I don’t believe even this [Supreme Court] would say that is OK,” he said.

Farley countered there’s no such thing as a “values-free” education and that parents should be able to choose a religious or secular education for their child. A virtual charter, he said, would satisfy a growing demand for Catholic education, particularly in rural areas where parishes lack sufficient students to open brick-and-mortar schools.

‘In the name of the state’

The debate elevates the importance of a recent 4th Circuit Court of Appeals case that focuses on whether charter schools are public or private.

The that charter schools — even those run by nonprofits — act on behalf of the state, just like traditional schools. But Charter Day School in Leland, North Carolina, unsuccessfully argued that it had the flexibility to adopt its own dress code requiring girls to wear skirts. Families sued, saying the rule violated girls’ civil rights.

The school has appealed the decision to the Supreme Court, and on Monday, the for an opinion from the U.S. solicitor general, who would argue the case for the Biden administration if the court accepts it.

Regardless of whether charter managers and employees work for nonprofit or religious organizations, the organization authorizing the charter is still “acting in the name of the state,” said Black, who sees the potential for “massive constitutional violations” if states allow charters that explicitly endorse religious instruction.

Oklahoma’s charter association said it is still reviewing the state’s opinion to determine its impact. The national Alliance, meanwhile, has a “legitimate concern” about backlash from blue states, where support for charters is already tenuous, Farley acknowledged. In fact, Black said if courts allow religious charters, states that don’t want them would have no recourse but to eliminate their charter laws.

“You could see states like Massachusetts, California or New York saying, ‘If courts are going to force religious charters on us, we will get rid of them,’ ” he said.