WASHINGTON — An Oklahoma school board vote, postponed on March 21 and set to take place sometime before the end of April, has already received a fair amount of attention.
That’s because the upcoming vote by Oklahoma’s Statewide Virtual Charter School Board is over something that would be the first of its kind in the country: a religious charter school.
The application for the proposed school, St. Isidore of Seville Catholic Virtual School, was filed by the Archdiocese of Oklahoma City and the Diocese of Tulsa. The school’s namesake is the patron saint of the internet, named for essentially creating an encyclopedia in the 600s.
If approved, the school for K-12 students would open in 2024 to 500 students in the first two years and up to 1,500 students by 2028. The tuition-free school would receive state funding.
The idea for this school was first presented to state officials in 2021 and has been on a rocky road since with both support and pushback for it.
“It’s sort of a chess game,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, the public policy arm of the state’s bishops.
He told The Tablet March 21 that although the charter school board meeting was postponed, he was still confident the group would move to a vote and said he was “optimistic the application will be approved.”
Farley acknowledged the effort has been on “unchartered waters,” and that no matter how the board voted there would likely be litigation.
As he put it: “It’s been a very interesting political maelstrom. I don’t have any dull days.”
Farley said the virtual Catholic charter school would “advance religious liberty and educational school choice at the same time” while fulfilling the Catholic Church’s mission to reach out where there are vast needs, especially in rural areas and for students with special needs.
The Oklahoma Catholic Conference thought the time was ripe for this application, he said, particularly after the Supreme Court’s Carson decision. In that ruling, last year, the justices said Maine’s exclusion of religious schools from a state tuition program for towns without public high schools violated the free exercise clause.
One of the twists and turns in the application process has been from a public official who supported the idea having since left office and his successor not being on the same page.
John O’Connor, Oklahoma’s previous attorney general who was not reelected, issued a legal opinion before leaving office in January saying that provisions of the state’s charter school law, requiring charter schools to be “non-sectarian” and not affiliated with religious institutions was unconstitutional and would likely be struck down by the Supreme Court.
His successor, Gentner Drummond, does not have the same view and withdrew O’Connor’s opinion in late February, saying it “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.” He also said that an approval of the Catholic virtual charter school would create a “slippery slope,” forcing the state to approve other religious-run charter schools.
He is not alone in his skepticism. Americans United for the Separation of Church and State has urged the state board not to grant the charter school application, stressing in a letter that charter schools are public schools and that the Constitution “requires that they remain neutral on issues of religion and prohibits them from teaching religion.”
The group also emphasized that even if charter schools could be classified as private entities, they are still acting with government authority and carrying out the governmental function of public education, making them, under the law, state actors.
The state actor part is a sticking point. If a school is a state actor, it is subject to the same civil rights laws as mainstream public schools. Catholic schools, that are privately funded, are not held to these same requirements.
In a Feb. 14 column in the Catholic publication, First Things, Nicole Garnett, a University of Notre Dame law school professor, said charter schools are not state actors.
“Charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really ‘state actors,’ ” she wrote.
Garnett works with the law school’s Religious Liberty Initiative, which has advised the Oklahoma dioceses in their charter school application.
Farley said a case the Supreme Court could take up soon would shed further light on charter schools.
In January, the court was asked to consider a North Carolina lawsuit against a state charter school over its dress code requiring girls to wear skirts. The American Civil Liberties Union, representing three girls suing the school, said the requirement was discriminatory but the school argues that it is not a state actor and is not required to adhere to the Constitution’s equal protection clause that bars discrimination.
While so much is still to be determined, Sister Dale McDonald, a Sister of the Presentation of the Blessed Virgin Mary and the director of public policy and educational research for the National Catholic Educational Association, is taking a wait and see approach.
For now, she said the perception that all Catholic schools could become charter schools is “just not going to happen.”
She said the NCEA “supports parents’ right to choose” and noted that that takes many forms.
“The most important thing right now, in a virtual or brick and mortar school is that the right to be a Catholic school is in its faith-based curriculum; that defines who we are.”
And as Farley also awaits a decision about the future of the virtual school, he said no matter the outcome, there will be mixed views. “Folks will be cheering or jeering,” he said.
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