Supreme Court May Rip A Few More Schoolhouse Bricks Out Of The Church-State Wall
From Forbes.com
The saga of Oklahoma’s Catholic charter school continues. If you haven’t been following along, catch the latest.
Should taxpayers be required to finance religious schools even as they are forbidden to impose any regulations on those schools?
The Supreme Court has agreed to hear a case that will help answer that question, adding the case of Oklahoma’s Catholic charter school to its docket.
Early in 2023, Oklahoma State Attorney General Gentner Drummond issued an opinion about the prospect of the state approving a church-run charter school. He was reversing the opinion of his predecessor, saying that previous opinion “misuses the concept of religious liberty by employing it as a means to justify state-funded religion. If allowed to remain in force, I fear the opinion will be used as a basis for taxpayer-funded religious schools.”
In June, 2023, the Oklahoma Statewide Virtual Charter School Board ignored him and approved the St. Isidore of Seville virtual charter, a cyber school that was proposed by the Archdiocese of Oklahoma City in collaboration with the Diocese of Tulsa. It was in anticipation of this application that the virtual charter board asked the previous AG for an opinion in the first place.
As an AP report notes, “Archdiocese officials have been unequivocal that the school will promote the Catholic faith and operate according to church doctrine, including its views on sexual orientation and gender identity.”
Drummond, a conservative Republican who has since announced his candidacy for governor, called the decision “contrary to Oklahoma law and not in the best interests of taxpayers.” Furthermore, "It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars.” Oklahomans, he argued, would soon find themselves on a “slippery slope,” forced to fund charters that promoted religions to which they objected.
The Oklahoma State Supreme Court ruled against the charter. St. Isidore, they ruled, is a charter school, therefor it is a public school and a state actor. Therefor the Establishment Clause and the Oklahoma Constitution apply, and the Free Exercise does not (because, says the court, St. Isidore is not a private entity).
The petition asks the court to settle two questions.
First, is the charter school a state actor? The petitioners want the answer to be no, because then they are not bound by the same state rules and regulations that any public school.
Second, the petitioners want to see the reasoning of the three cases cited to cover this situation, following Chief Justice John Roberts’ reasoning from Carson. In his dissent on Carson, Justice Breyer speculated on where this reasoning may take us:
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?
It would be such awful precedent.