Oklahoma!

Life bears far less resemblance to a Rodgers and Hammerstein musical than we could have ever imagined. In June, three members of an Oklahoma state agency voted to approve an application by the Catholic Archdiocese of Oklahoma City to establish the nation’s first religious public charter school. In response, several organizations and Oklahoma counsel filed a lawsuit on behalf of nine Oklahoma residents and a nonprofit organization to halt this action. (The organizations filing the suit include the Education Law Center, which I direct, as well as Americans United for Separation of Church and State, the American Civil Liberties Union, and the Freedom from Religion Foundation.)

The decision to allow the use of taxpayer dollars to run a religious public school raises serious legal concerns, the most obvious of which is the obliteration of the wall between church and state. In addition, the Catholic Archdiocese has declared that its new public charter school — the St. Isidore of Seville Catholic Virtual School — will only follow antidiscrimination and other legal requirements to the extent that they are not “inconsistent with the faith or moral teaching of the Catholic Church.” Translation: The doors of this public school won’t be open to any student, family, or employee whose identity, beliefs, or behavior don’t conform with Catholic religious doctrines. Because St. Isidore will be a public school, this amounts to state-sponsored discrimination.

But there’s another, even larger risk that now looms before us: the utter disregard for a state’s laws and system of self-governance, and ultimately, public education itself as a cornerstone of democracy.

Oklahoma’s constitutional and legislative history

Allowing a religious public school threatens to uproot more than a century of guideposts, carefully laid down by Oklahoma policy makers and citizens, establishing how the state wishes to go about educating its people.

On Sept. 17, 1907, Oklahoma voters decisively ratified the Oklahoma Constitution, which 112 delegates to the Constitutional Convention had drafted and adopted over the preceding 10 months. Shortly afterward, the American historian Charles Beard (1909) declared that the framers of the Oklahoma Constitution had created “a mosaic in which the glittering new designs of advanced democracy appear side by side with patterns of ancient English make.”

Article I, Section 2 of the Oklahoma Constitution shows its framers’ support for private religious liberty: “Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship.” But the framers go on to require, in Article I, Section 5, that the state “establish[ ] and maint[ain] . . . a system of public schools, which shall be open to all the children of the state and free from sectarian control.” Other sections of the Oklahoma Constitution support the main thrust of Article I, Section 5: The state must provide public education to all students without discriminating, and public schools can’t be religious.

The Oklahoma Supreme Court has heeded the delegates’ intent. In Gurney v. Ferguson (Okla., 1941), it struck down a statute requiring public busing of private or parochial students to and from school, stating that “there is no doubt that [the Oklahoma Constitution] prohibits the use of public money or property for sectarian or parochial schools.” It reaffirmed this message two decades later, in Board of Education for Independent School District No. 52 v. Antone (Okla., 1963). It’s worth noting that the Court, in both of these cases, disapproved of a much more limited kind of support for religious education than what the Catholic Archdiocese seeks today: state funding of a religious charter school.

Much more recently, the Oklahoma Legislature has made clear its desire to keep religion out of public (and public charter) schools. Like every state government, the Oklahoma Legislature is responsible for establishing and supporting the state’s public education system. In 1999, the legislature enacted the Oklahoma Charter Schools Act, the purpose of which (among other things) is to “improve student learning,” “increase learning opportunities for students,” and “encourage the use of different and innovative teaching methods.”

The act defines a “charter school” as “a public school established by contract” with a state or local entity that is subject to “the same academic standards and expectations as existing public schools.” It requires charter schools to be “as equally free and open to all students as traditional public schools,” and to comply with all regulations, rules, and statutes relating to “civil rights.” They must be “nonsectarian in [their] programs, admission policies, employment practices, and all other operations.”

It’s crystal clear, therefore, that the founders and policy makers of Oklahoma, while supporting private religious life, have insisted that the state’s public schools remain free from both discrimination and religious indoctrination.  Sweeping aside the governing principles Oklahoma has established for itself here would be seriously misguided.

Why comparisons to federal law on vouchers miss the mark

Proponents of religious charter schools are likely to point to a line of federal cases involving school voucher and similar programs — including Carson v. Makin (U.S. Sup. Ct., 2022), in which the Supreme Court held that, in accordance with the First Amendment’s free exercise clause, private religious schools in Maine must be allowed to participate in private-school tuition assistance programs on the same basis as private nonreligious schools. Oklahoma’s previous attorney general, John O’Connor, essentially advanced this argument in an advisory opinion issued on Dec. 1, 2022, in which he stated that Oklahoma laws prohibiting religion in public charter schools should “not be enforced” because they likely violate federal law. Months later, however, on Feb. 23, 2023, his successor, Gentner Drummond, rescinded that opinion, stating that Carson and other federal cases “concerning private schools have little precedential value as it relates to charter schools.”

Drummond is right to make the public-private distinction. Unlike voucher programs, in which funding goes to private schools that remain private in nature, religious charter schools would become part of the public education system itself. Voucher programs — although also cause for great concern because of their impact on public education — are distinguishable operationally and legally from public religious schools.

Apart from the inapplicability of federal voucher cases to the present situation, there is ample reason to adhere to Oklahoma’s laws and policies in this instance. In San Antonio Independent School District v. Rodriguez (U.S. Sup. Ct., 1973), the Supreme Court emphasized that “state taxation and education are matters reserved for the legislative processes of the various States.” And legal scholar Robert Williams (2002) has noted that “[s]tate constitutions have unique origins, differentiating them in important ways from the Federal Constitution,” particularly because they are ratified by the electorate and represent the “voice of the people.” Granted, federal law is clearly relevant to public education, and states aren’t always right in setting education policy. But courts would do well to tread carefully before unraveling states’ governance frameworks built upon core constitutional principles.

Eroding public education and democracy

A push to permit religious charter schools has the potential to destabilize both the charter school sector (that’s why the National Alliance for Public Charter Schools opposes it) and the entire system of public education. Public education funding is already far too low in many states. Oklahoma, for example, provides nearly 25% less funding per-pupil than the national average (Farrie & Sciarra, 2022). If religious schools are allowed to become public charter schools, these cash-strapped schools would have to share their already scarce funds with schools that are not under the same obligation to serve all students, regardless of faith, LGBTQ+ status, disability, or other characteristics.

What will this mean for the public’s — and state and local governments’ — relationship to public schools? Where will parents who are unwilling to support religion or discrimination or whose religious beliefs differ from those espoused by state-funded religious schools send their kids to school? How will taxpayers who disagree with the use of their money vote in future referenda or elections that affect public schools? How will states or municipalities that don’t wish to support religious education adjust their school funding levels or formulas? The truth is that no one knows.

There’s a wind coming, sweepin’ down the plain, in Oklahoma. What direction it will take, or what it will knock down in its path, is anyone’s guess. We can’t afford to ignore it.

References

Beard, C.A. (1909). The Constitution of Oklahoma. Political Science Quarterly, 24 (1), 95-114.

Farrie, D. & Sciarra, D.G. (2022). Making the grade 2022: How fair is school funding in your state? Education Law Center.

Williams, R.F. (2002). The Brennan Lecture: Interpreting state constitutions as unique legal documents. Oklahoma City University Law Review, 27, 189-194.

This article appears in the October 2023 issue of Kappan, Vol. 105, No. 2, p. 64-65.