The Oklahoma Supreme Court ruled against public funding of non-sectarian charter schools, defending St. Isidore in the faith
But at the Supreme Court on Wednesday, the questions posed by the conservative justices seemed to lean heavily in favor of allowing religious schools to become publicly funded charter schools.
Under both the state and federal laws, charter schools are defined as public schools. They are established by the state, funded by the state, closely supervised by the state and can be unilaterally closed by the state. And most importantly for Wednesday’s case, charter schools by law must be non-sectarian.
The Oklahoma Supreme Court said that would put the school directly at odds with a series of landmark Supreme Court decisions that bar religious prayer and instruction in public education.
The state believes that the First Amendment forbids any establishment of religion, and it’s safe to say that St. Isidore would adhere to the Catholic faith. The school would, in its own words, serve as a “genuine instrument of the church” and “participate in the evangelizing missions of the church,” including teaching the faith to students, requiring them to attend mass, and to “adhere to the belief” that “Christ is present in the holy Eucharist.”
Opposing St. Isidore is the Republican Attorney General of Oklahoma, Gentner Drummond, who argues: “Religious liberty is really the freedom to worship. It is not taxpayer-funded, state-sponsored religious indoctrination.”
The drafters understood how to protect religious freedom by preventing the state from sponsoring any religion, he says.
There will be consequences if the Catholic Church is given millions of dollars in public funding for their religious mission. He says if the Catholic church is allowed to impose its doctrine on charter students, they can substitute satanic beliefs, Muslim, Jewish, and anything else they want.
There is a practical fly in the case. With the court closely divided on some religious questions, Justice Amy Coney Barrett, a staunch advocate of religious rights, has recused herself from the case, without explanation.
The reason is because she is close to a Notre Dame law professor who was an early advisor for St. Isidore.
The Oklahoma Supreme Court’s Judgment On Adding Religious Schools to the Public Charter Schools: Justice Elena Kagan, The Orthodox Church, and Bishop Michael McGinley
The tie vote on the court could be caused by Justice Barstool’s absence. The Oklahoma Supreme Court has already upheld the current decision, and religious charter school proponents would have to start looking for another case.
At a point, Justice Kavanaugh said: “All the religious school is saying is don’t exclude us on account of our religion.” And when you have a program that’s open to all comers except religion, that seems like rank discrimination against religion.”
What would teachers be able to teach if religious schools were added to public charter schools? How would the nation’s disability rights laws apply for children? What would the curriculum be if a religious school barred the teaching of evolution? Can you have a gay teacher or not? He said that the questions could tie up school districts for a long time.
At the end of the day, only the court’s three liberals were openly skeptical of the notion that a Catholic school dedicated to teaching the word of Christ could be part of a public charter school program that is entirely funded by the government.
Justice Elena Kagan, addressing one of the lawyers representing the archdioceses, noted that the charter school system was enacted to increase curricular flexibility so that the state, for example, could create schools that focus more on the arts, or on math and science, or language proficiency.
She said that states, when they created their charter school systems, “did not want to start funding every religious school in the country. And now you’re saying to that state, ‘Yes, you have to go fund the Yeshiva. … yes, you have to go fund the [madrasas]; yes, you have to go fund” countless other religious groups because you have established a school system that includes religious charter schools.
Kagan also pointed to the contract that St. Isidore negotiated with the state in order to be a charter school, a contract that, as she put it “you modified to incorporate various church autonomy principles.” St. Isidore struck certain provisions in the charter school contract, according to lawyer Michael McGinley.
Kagan followed up, asking, “What if you had wanted to strike out other provisions…because the kind of religious education that you thought… were inconsistent with” the church’s mission. McGinley admitted that was part of the contracting process.
Changing that long-held norm could have profound and hugely different consequences in different states. Some states, for instance, might find that “our traditions are not to allow the teaching of religion in our public schools.”