An Oklahoma state education board is weighing whether to approve the nation’s first religious charter school this spring, potentially setting up a high-profile constitutional battle over whether taxpayer money can be used to directly fund religious schools.
A small number of charter schools may be affiliated with religious organizations, but the proposed school, which would be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, would be the first to operate as an explicitly religious school, with religious instruction. Charter schools are a type of public school, paid for with taxpayer dollars but independently run and managed.
A decision to approve the charter, St. Isidore of Seville Catholic Virtual School, would almost certainly tee up a legal battle, something the school’s organizers anticipate and welcome.
With conservative justices now dominating the Supreme Court, St. Isidore’s organizers hope their project will help propel a broader national movement to lower the barriers between church and state and to allow government money to be spent on religious schools.
“We are trying to motivate the courts to take up this question and give us a final answer,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, which represents the Catholic Church on policy issues and is behind the proposal.
Members of the Oklahoma Statewide Virtual Charter School Board, a five-member voting panel appointed by the Republican governor and leaders of the Republican-controlled State Legislature, wrestled extensively over whether to approve the school’s application at a meeting on Tuesday.
From the outset, board members noted the legal weight of the decision and discussed their options should they be sued. Two conflicting legal opinions — from Oklahoma’s past and present attorney general — left them unsure of how to proceed.
The relatively obscure board is under immense political pressure. The St. Isidore application has the support of Gov. Kevin Stitt, who has argued that excluding religious charter schools is a violation of the First Amendment’s prohibition on religious discrimination.
At the meeting, the elected state superintendent, Ryan Walters, a Republican who is a nonvoting member of the board, tried to rally the board to support the application.
Characterizing opponents as “radical leftists” with a hatred for the Catholic Church, Mr. Walters urged board members to make Oklahoma a leader in religious freedom and in expanded options for school children. He added: “I’ll stand by you, any kind of intimidation that comes your way.”
The board chairman, Robert Franklin, pushed back against that description of opponents, who, during a public comment portion of the meeting, had included local religious leaders and a founder of a coalition for rural schools.
“No disrespect to you, but I didn’t hear a radical position,” he said.
In the end, the board voted 5 to 0 to seek more information from St. Isidore’s organizers — including their analysis of why a religious charter would be constitutional. The board is expected to vote again on the issue later this spring.
“I don’t think it will be us who ultimately lands this plane,” Mr. Franklin said. “It will go to courts to ultimately decide where that lands.”
In a series of recent rulings, the Supreme Court, which now has a 6-to-3 conservative majority, has signaled its support for the directing of taxpayer money to religious schools, amid a broader embrace of the role of religion in public life.
In key cases in 2020 and 2022, the Supreme Court ruled that Montana and Maine could not exclude religious schools from state programs that allowed parents to use government-financed scholarship or tuition programs to send their children to private schools. In both cases, Chief Justice John G. Roberts Jr. wrote that the rulings did not require states to support religious education, but that if a state were to choose to subsidize any private schools, it may not discriminate against religious ones.
Some legal experts see charter schools as the next frontier, moving the question from whether parents can use state money to pay for private religious schools of their choosing, to whether the government can directly finance religious schools.
Charter schools represent a hybrid — and growing — model of education. Like regular public schools, they are funded with taxpayer money and do not charge tuition. But unlike traditional schools, they are not zoned to particular neighborhoods, are independently managed and are often designed for innovation and flexibility. About 7 percent of public school students in the United States attend charter schools.
Lori Allen Walke, the senior minister at Mayflower Congregational UCC Church, a Protestant community in Oklahoma City, is among those who spoke against the proposal on Tuesday. In an interview, she described the idea of religious charter schools as a violation of religious freedom, which “protects our right to practice the religion of our choice and to not practice a religion of anyone else’s choice.”
Ms. Walke, who works with Americans United for Separation of Church and State, a legal advocacy group, was alarmed by St. Isidore’s application, which describes Catholic schools as participating in “the evangelizing mission of the Church.”
“They’re being very transparent about what they’re trying to do there,” she said.
Organizers for St. Isidore said that the school would accept students of all faiths or no faith — just as other Catholic schools in Oklahoma do now. If approved, the school, named for the patron saint of the internet, would accept an initial batch of 500 students in kindergarten through 12th grade, starting no sooner than the fall of 2024.
“We are taking what we have been doing in Catholic schools for over a century in Oklahoma and putting that online, so that we can bring this content to the folks out in the rural areas,” Mr. Farley, of the Catholic Conference of Oklahoma, said before Tuesday’s meeting.
He said that while a religious charter school represented an “innovation,” the concept of government money going toward a religious institution was “not at all exceptional.”
“We do this in many walks of life,” he said. “We’ve got Medicaid going to Catholic hospitals. We’ve got FEMA relief funds going to Catholic Charities.”
But the prospect of a religious school fully funded by taxpayers raises additional questions.
When asked about admitting L.G.B.T.Q. staff members and students, for example, Mr. Farley said that he could not comment on hypotheticals. He said the school intended to abide by state regulations, while also maintaining its right to operate according to its religious beliefs.
A broader approval of religious charter schools would apply to religions of all kinds — Jewish and Muslim charter schools, for example. But Rachel Laser, president and chief executive of Americans United for Separation of Church and State, said she worried that the Oklahoma case “clears a path for the government to favor the majority religion.”
Nicole Stelle Garnett, a law professor at the University of Notre Dame who has argued for religious charter schools and has advised the St. Isidore organizers, said that the “underlying question” was not about religion but about whether charter schools were “state actors” or “private actors,” despite being publicly funded.
“Are they really government agents, or are they more like a government contractor?” she asked, using the example of Lockheed Martin, a private company that contracts for the U.S. military.
If they are private actors, there is room for them to be expressly religious, Ms. Garnett said.
But the charter school movement sees itself as squarely in the sphere of public education, said Nina Rees, president and chief executive of the National Alliance for Public Charter Schools.
She noted that charter schools must follow the same requirements as regular public schools do, such as hiring staff members and accepting students regardless of religious background or sexual identity — protections she fears would go away under religious charters.
The legal question — whether charter schools are “state actors” or “private actors” — is central to another case, from North Carolina, which the Supreme Court is weighing whether to take up.
Should the question make its way to the Supreme Court, Preston Green, a professor at the University of Connecticut who studies educational law, believes that the court’s conservative majority would be likely to embrace charter schools as “private actors,” opening the door to religious charters.
“I just can’t see them saying ‘no’ to this, if they get a chance,” he said.
Charlie Savage contributed reporting