On October 18, the Oklahoma Statewide Virtual Charter School Board executed a contract with St. Isidore of Seville Catholic Virtual School, creating the nation’s first religious charter school. The board approved St. Isidore’s application earlier this year. Enforcing Oklahoma’s ban on religious charter schools, it concluded, would violate the First Amendment’s Free Exercise Clause.
Two days after the charter was executed, Oklahoma’s attorney general, Gentner Drummond, sued the board in the Oklahoma Supreme Court. This came as little surprise, as Drummond repeatedly had stated his intent to take legal action against the board’s approval of St. Isidore.
Drummond’s particular concern with the approval of a Catholic charter school, however, would undoubtedly surprise many. In both the press release announcing his lawsuit and the brief itself, Drummond suggested that his suit would protect the religious liberty of Oklahomans by guaranteeing that taxpayer dollars would not fund religious schools—especially Islamic schools. In a press release, Drummond opined: “Today, Oklahomans are being compelled to fund Catholicism. . . . [T]omorrow we may be forced to fund radical Muslim teachings like Sharia law. In fact, Governor Stitt has already indicated that he would welcome a Muslim charter school funded by our tax dollars. That is a gross violation of our religious liberty.”
Drummond’s petition to the Oklahoma Supreme Court reinforces this argument:
Make no mistake, if the Catholic Church were permitted to have a public virtual charter school, a reckoning will follow in which this State will be faced with the unprecedented quandary of processing requests to directly fund all petitioning sectarian groups. . . . For example, this reckoning will require the State to permit extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law. Consequently, absent the intervention of this Court, the Board members’ shortsighted votes . . . will pave the way for a proliferation of the direct public funding of religious schools whose tenets are diametrically opposed by most Oklahomans.
A categorical ban on religious charter schools is the best way to protect Oklahomans’ religious freedoms, Drummond contends. As his press release noted on Friday, “There is no religious freedom in compelling Oklahomans to fund religions that may violate their own deeply held beliefs.” The best way to protect religious freedom, he opined, is by “preventing the State from sponsoring any religion at all.”
Drummond’s view of religious liberty is notable in at least two respects. The first is his fearmongering about the supposed danger of the state being forced to extend support to schools operated by minority religious groups. For example, when he withdrew his predecessor’s opinion letter concluding that Oklahoma laws banning religious charter schools are likely unconstitutional, Drummond opined: “While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths . . . I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”
The second is his fundamental misapprehension of religious-freedom law and Supreme Court precedent. In his petition, he argues that the First Amendment requires the state to refuse to fund private religious organizations that wish to run charter schools, though it funds dozens of privately operated secular charters. But time and again, the Supreme Court has emphasized that the First Amendment demands the equal treatment of religious institutions and believers. Three recent examples: Trinity Lutheran Church and School v. Comer (2017) held that Missouri violated the Free Exercise Clause by excluding a religious preschool from a playground-resurfacing program because religious discrimination is “odious to our Constitution;” Espinoza v. Montana (2019) determined that the Montana Supreme Court violated the First Amendment by invalidating a modest school choice program because it included religious schools; and, last year, in Carson v. Makin, the Court ruled that Maine engaged in unconstitutional religious discrimination by excluding religious schools from a scholarship program for rural high school students.
Those Court decisions make two things clear. First, the Establishment Clause does not prevent the government from permitting religious institutions to participate in public programs that extend benefits to private organizations on a religion-neutral basis. Second, when the government extends public benefits to private secular organizations, the Free Exercise Clause requires it to extend these benefits to private religious organizations, too. These principles hold true in the K-12 education context, as the Court made clear in Espinoza and Carson.
Unfortunately, as the Becket Fund for Religious Liberty argued in a recent brief, despite these developments, many government officials—including, apparently, the attorney general of Oklahoma—“seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since. Under this view, allowing religious [organizations] . . . in government-funded programs is constitutionally dangerous, and the safest course for local officials is to exclude [them]. That mistaken view . . . has consequences.”
One is the suppression of religious pluralism, which—as Drummond’s comments lay bare—too often targets religious minorities. That suppression is not only unnecessary but also unconstitutional. The best, and constitutionally required, way to ensure religious pluralism is to embrace it, not to stifle it. Fortunately, the Supreme Court has made this clear, whether Drummond recognizes it or not.
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