Religious Freedom or Religious Indoctrination? The Constitutionality Behind the First Religious Charter School in the US

After deliberating for three hours, a small committee in Oklahoma made a decision that would irrevocably blur the lines of what constitutes the separation of church and state. The ruling – the approval of a state-funded Catholic charter school – was the first ever approval of a taxpayer funded religious institution in United States history. Following the verdict, many have called into question whether this decision is an act of “religious freedom” or a violation of the fundamental rights granted by the first amendment. The school, St. Isidore of Seville Catholic Virtual School, which is set to open next fall, is unconstitutional on the grounds that it violates the Oklahoma Constitution, the United States Constitution, and the Oklahoma Charter School Act. Further, previous court case precedents such as Locke v. Davey (2004) and Zelman v. Simmons-Harris (2002) clarify how this decision oversteps boundaries regarding governmental entanglement in religion.

In order to establish a charter school in Oklahoma, one must submit an application to the Oklahoma Statewide Virtual Charter School Board (OSVCSB) that adheres to the statutes listed in the Oklahoma Charter School Act. The OSVCSB was created in order to “authorize and sponsor statewide virtual charter schools in [Oklahoma]...” and affirm that these school’s meet state standards and criteria for sponsorship by the state. [1] Applications sent to the board for approval include a comprehensive outline of a school’s potential success comprising their mission, policies, procedures, administration, and more. [2] Initially, in April 2023, OSVCSB voted unanimously to reject St. Isidore’s application for sponsorship based on their outline regarding special education student plans, separation of public and private funds, and other concerns. However, based on the timeline established by the state, the Archdiocese of Oklahoma City was given another chance to address any questions and concerns brought up by the board and submit an updated application. [3] After presenting a reviewed application, the board reconvened in June to vote on St. Isidore’s sponsorship, but this time, the school’s establishment was approved in a 3-2 vote. [4] It is estimated that in the next five years, the school could cost Oklahoma taxpayers up to 25.7 million dollars. [5]

Despite the OSVCSB authorizing the sponsorship of St. Isidore, their decision remains unconstitutional based on both the Oklahoma and United States Constitutions. Section I-5 (Public schools - Separate schools) of the Oklahoma State Constitution states, “Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be

open to all the children of the state and free from sectarian control,” with “sectarian” relating to a religious support or affiliation. [6] The statement above applies to charter schools since they are publicly funded and, as a result, are prohibited from providing religious schooling of any type. However, as stated in their mission, St. Isidore emphasizes their commitment towards “putting the Church at the service of the community in the realm of education” which, in turn, establishes a Catholic education for children in the state. [7] Section II-5 (Public Money & Property) in the Oklahoma State Constitution further states that “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” [8] Charter schools are defined as public schools that are operated independently but remain largely publicly funded. [9] Given that St. Isidore is associated with the Archdiocese of Oklahoma City and the Diocese of Tulsa and provides a religious education, this unequivocally ties in public money for the use of sectarian institutions in support of a religion in schools. [10] Ultimately, various statutes of the Oklahoma State Constitution were violated in this decision by the OSVCSB due to the establishment of St. Isidore on a religious basis.

On a federal scale, the United States Constitution includes two provisions regarding religion within the First Amendment known as the Free Exercise Clause and Establishment Clause. These provisions emphasize the separation of church and state which were violated. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” [11] The Free Exercise Clause specifically protects an individual’s right to practice their religion freely, including but not limited to private prayer, discussion of beliefs, and other forms of religious exercise. As exemplified in the above excerpt, the Establishment Clause prohibits the government from “establishing” a religion as a way to provide a “structural restraint on governmental power.” [12] Essentially meaning that any action done on behalf of the government with any religion or affiliated institution may give the impression of an endorsement. As such, any religious endorsement on the part of any level of government would qualify as unconstitutional. Although the interpretation of what constitutes “establishment" is debated, currently, a three-part test known as the Lemon Test is used to analyze whether actions on behalf of the government violated the Establishment Clause. Under this test, any government assistance regarding religion can only occur if its purpose is secular, it does not promote or inhibit religion, and it does not create excessive entanglement between church and state. [13] The reason that religious private schools are able to exist without infringing on these rights is due to them being non-governmental and privately funded. As such, parents are able to willingly subject their children to a religious education. However, in terms of the charter school St. Isidore, it would receive public funds, equating to a religious endorsement on the part of the state. Due to its nonsecular purpose of promoting Catholicism, an excessive entanglement between church and state occurs, making the establishment of this school unconstitutional.

Moreover, St. Isidore violates various statutes within the Oklahoma Charter Schools Act – specifically regarding religiously affiliated sponsors and operations. Under the Charter School Compliance Section of the Act, it is stated that all charter schools “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.” [14] In the first place, St. Isidore states in their application that their purpose is to “create, establish, and operate the School as a Catholic School.” [15] This direct religious intention goes against the nonsectarian requirement in programs; hence, it qualifies as a violation of the Act. The school’s purpose is further explained within the application, stating it is “to operate a school in harmony with faith and morals...as taught and understood by the Magisterium of the Catholic Church based upon Holy Scripture and Sacred Tradition.” [16] However, their sectarian operations extend beyond the educational curriculum, and they apply to employment practices as well. As stated, St. Isidore is committed to “[hiring] educators, administrators, and coaches as ministers committed to living and teaching Christ’s truth as understood by the Magisterium of the Roman Catholic Church through actions and words, using their commitment to Christ...” . [17] Essentially, employees of the school would have to practice Catholicism to an extent in order to promote this mission and be a model for students of this community. Although discrimination is not allowed, as stated in the Act, requiring workers to commit to the Catholic belief would disqualify others that may be non-religious or non-practicing from being involved despite this being a state-funded school. As such, this employment requirement of St. Isidore's would qualify as a discriminatory practice. The Act further states that “a sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.” [18] Despite this requirement, the school remains a joint effort between the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, two Catholic institutions that continue to affiliate with St. Isidore. Due to this affiliation, it can be attributed to a state endorsement of religion.

The issue regarding funding of religious programs is not new to the Supreme Court, as is evident with the landmark cases Locke v. Davey (2004) and Zelman v. Simmons-Harris (2002).
Both cases rule in regards to constitutional funding of religious programs. For this exact reason, they are fundamentally important in understanding why a school like St. Isidore would remain unconstitutional regarding the funding it is receiving. In Locke v. Davey (2004), the state of Washington was sued by Joshua Davey over the Washington State Promise Scholarship. The scholarship was awarded to talented college students, however, the money could not be used if the student was pursuing a degree in theology since it promoted religious beliefs. As a result, Davey was forced to forfeit the grant due to his interest in majoring in pastoral ministries which he believed was an infringement of his First Amendment right to free exercise of religion. However, in a 7-2 ruling the Court sided with the state of Washington saying that by excluding theological majors they are not violating the free exercise clause but instead following the constitution which does not allow for state money to be used for religious instruction. [19] In Locke v. Davey, the government was providing funding through a direct scholarship for students

pursuing college degrees. Although not all forms of funding necessarily mean that the government is endorsing a religion, the decision to exempt those majoring in theology from the scholarship allows the government to remain “neutral” in regards to religion and respect both provisions of the First Amendment. A theological degree, specifically pastoral ministries, teaches religion as the “truth of the matter” and prepares students to become a part of the Church in the future. By funding these degrees, the government would be affirming and endorsing their position on religion, since these students would be receiving a religious and not secular education. By financially supporting St. Isidore, the government is actively endorsing Catholicism, as the school promotes a religious education that is rooted in Catholic beliefs.

In Zelman v. Simmons-Harris (2002), Ohio’s Pilot Project Scholarship Program was sued for violating the Establishment Clause. The program gave vouchers to low income students in the Cleveland City School District in order for them to attend public or private schools both religious and nonreligious. In this case, in a 5-4 ruling, the Supreme court ruled that the program did not violate the Establishment clause, since the decision of where to send these students to school was up to the parents’ discretion. The program was not directly funding religious institutions. Thus, their decision did not lead to an endorsement of a particular religion on behalf of the government. [20] Although the situation at hand was deemed constitutional due to the ruling that it solely involved an assistance program, the same can not be said for St. Isidore. The school still remains unconstitutional as state funding goes directly to the school instead of the public in order for them to choose an institution.

Overall, the approval of St. Isidore of Seville Catholic Virtual School could potentially reshape the future of religious education in the United States. With ongoing legal battles surrounding the constitutionality of the school, there is no telling whether this ruling could become a federal case regarding the establishment of taxpayer-funded religious schools. Currently, there is a great deal of evidence in favor of the school being ruled unconstitutional due to its violation of the Oklahoma and United States Constitutions, and the Oklahoma Charter School Act. In addition, Locke v. Davey (2004) and Zelman v. Simmons-Harris (2002) only further demonstrate how direct funding to St. Isidore is legally unlawful. Regardless of the verdict concerning its constitutional basis, the ability for the school to be approved within a school district will potentially inspire other religious institutions to take similar action. Meanwhile, it is important to address these topics surrounding the separation of church and state in order to ensure that government entanglement in religion is kept to a minimum.

Edited by Alicia Lopez-Guerra

[1] Oklahoma Statewide Virtual Charter School Board, “Authorization Process for Virtual Charter Schools | Oklahoma Statewide Virtual Charter School Board,” July 2023, https://svcsb.ok.gov/authorization.

[2] Oklahoma Statewide Virtual Charter School Board, “Oklahoma Statewide Virtual Charter School Board Virtual Charter School Authorization and Oversight Process Manual,” August 2022, https://svcsb.ok.gov/sites/g/files/gmc806/f/documents/2023/8.9.22_-_svcsb_approved_authorizat ion_process_manual_-_final_-_with_new_charter_contract_template_3.29.23.pdf.

[3] Nuria Martinez-Keel, “Oklahoma Board Votes down Catholic Charter School but the Process Isn’t Over Yet,” Oklahoman, April 11, 2023, https://www.oklahoman.com/story/news/education/2023/04/11/oklahoma-statewide-virtual-chart er-school-board-rejects-catholic-school-vote/70100040007/.

[4] Sarah Mervosh, “Oklahoma Approves First Religious Charter School in the U.S.,” New York Times, June 5, 2023, https://www.nytimes.com/2023/06/05/us/oklahoma-first-religious-charter-school-in-the-us.html.

[5] John Kruzel, “Oklahoma Eyes First US Religious Charter School after Supreme Court Rulings,” Reuters, April 6, 2023, https://www.reuters.com/world/us/oklahoma-eyes-first-us-religious-charter-school-after-supreme -court-rulings-2023-04-06/.

[6] “Oklahoma State Constitution,” Oklahoma Department of Labor, https://oklahoma.gov/labor/transparency/oklahoma-state-constitution.html.

[7] “Frequently Asked Questions,” St. Isidore of Seville Catholic Virtual School, https://stisidorevirtualschool.org/faqs.

[8] Department of Labor, “Oklahoma State Constitution,”
[9] “About Charter Schools,” National Alliance for Public Charter Schools,

https://www.publiccharters.org/about-charter-schools. [10] St. Isidore, “Frequently Asked Questions.”
[11] St. Isidore, “Frequently Asked Questions.”
[12] U.S Constitution, amend. 1, Sec 1.

[13] Carl H. Esbeck, “Differentiating the Free Exercise and Establishment Clauses,” Journal of Church and State 42, no. 2 (Spring 2000): 1-3,1.
https://doi.org/10.1093/jcs/42.2.311

[14] Kaitlyn Rentala, “Separation of Church and State: A History,” Penn Undergraduate Law Journal (Fall 2019): 1 https://www.pulj.org/the-roundtable/separation-of-church-and-state-a-history

[15] “Oklahoma Statutes | Oklahoma Charter Schools Act | Casetext,” Casetext,

https://casetext.com/statute/oklahoma-statutes/title-70-schools/chapter-1-school-code-of-1971/art icle-iii-state-department-of-education/oklahoma-charter-schools-act.

[16] “Revised St. Isidore of Seville Catholic Virtual School Application,” Tulsa World, June 2023, https://tulsaworld.com/revised-st-isidore-of-seville-catholic-virtual-school-application/pdf_e2b4e 62e-009a-11ee-b660-7bff6885c74b.html.

[17] Tulsa World, “Virtual School Application.” [18] Casetext, “Oklahoma Charter Schools Act”

[19] Locke v. Davey, 540 US 712, 2004, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2003/02-1315.pdf.

[20] “Zelman v. Simmons-Harris,”Cornell Legal Information Institute, 2023, https://www.law.cornell.edu/supct/html/00-1751.ZS.html.