By John Kruzel
WASHINGTON (Reuters) -The U.S. Supreme Court agreed on Friday to hear a bid led by two Catholic dioceses to establish in Oklahoma the nation’s first taxpayer-funded religious charter school in a case testing the separation of church and state.
A lower court blocked the establishment of St. Isidore of Seville Catholic Virtual School, ruling that its funding arrangement violated the U.S. Constitution’s First Amendment limits on government endorsement of religion. The Supreme Court took up an appeal of that ruling by a state school board and the organizers of the proposed school.
The case is expected to be argued the coming months and decided by the end of June.
St. Isidore, planned as a joint effort by the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, would offer virtual learning from kindergarten through high school. The proposed Catholic charter school has never been operational amid legal challenges to its establishment.
St. Isidore has sought to become the first religious charter school in the United States, according to Nicole Garnett, a professor at Notre Dame Law School, which has provided legal representation to the school’s organizers.
While some U.S. charter schools have been affiliated with religious institutions, their curriculum has been secular, added Garnett, a former law clerk for conservative Supreme Court Justice Clarence Thomas.
St. Isidore, for its part, “would teach religion as the truth of the matter,” Garnett said.
Charter schools in Oklahoma are considered public schools under state law and draw funding from the state government. Organizers estimated in 2023 that St. Isidore would cost Oklahoma taxpayers up to $25.7 million over its first five years in operation.
The Alliance Defending Freedom, a conservative legal group representing Oklahoma’s Statewide Charter School Board, applauded the court’s decision to hear the case.
“The U.S. Constitution protects St. Isidore’s freedom to operate according to its faith and supports the board’s decision to approve such learning options for Oklahoma families,” said Jim Campbell, the group’s chief legal counsel.
The Freedom From Religion Foundation, a group that advocates for the separation of church and state, said on social media it will file a brief with the Supreme Court “to represent our members’ opposition to being forced as taxpayers to support religious education/indoctrination.”
The proposed charter school has divided top officials in Republican-governed Oklahoma.
The state’s then-Attorney General John O’Connor, a Republican, in December 2022 wrote that recent Supreme Court rulings provided a legal basis for the religious charter school – an opinion embraced by Oklahoma’s Republican Governor Kevin Stitt.
But O’Connor’s successor as attorney general, Republican Gentner Drummond, withdrew that opinion in February 2023, saying it “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”
The Oklahoma school board in June 2023 approved the plan to create St. Isidore in a 3-2 vote.
Drummond sued to block St. Isidore in an October 2023 legal action filed at the Oklahoma Supreme Court, saying he is duty bound “to protect religious liberty and prevent the type of state-funded religion that Oklahoma’s constitutional framers and the founders of our country sought to prevent.”
Oklahoma’s top court in June 2024 ruled against the school board and St. Isidore’s organizers, finding their funding arrangement violated Oklahoma law by using “state funds for the benefit and support of the Catholic Church.” The ruling also concluded that the proposed school ran afoul of the First Amendment’s “establishment clause,” which restricts government officials from endorsing any particular religion, or promoting religion over nonreligion.
FIRST AMENDMENT CONSTRAINTS
School board officials and St. Isidore also claimed that Oklahoma’s top court erred by deeming St. Isidore a government entity. The First Amendment generally constrains the government but not private entities.
Secular opponents have said religious charter schools would violate legal limits on government involvement in religion.
Conservative Justice Amy Coney Barrett, a former Notre Dame Law School professor, recused herself from the Supreme Court’s decision to hear the case.
The Supreme Court’s conservative justices have widened religious rights in a series of rulings in recent years.
The court in 2022 backed two Christian families in their challenge to Maine’s tuition-assistance program that had excluded private religious schools. In 2020, it endorsed Montana tax credits that helped pay for students to attend religious schools. The court in a Missouri case in 2017 ruled that churches and other religious entities cannot be flatly denied public money even in states whose constitutions explicitly ban such funding.
(Reporting by John Kruzel; Editing by Will Dunham)
