Oklahoma Attorney General files lawsuit to block taxpayer-funded Catholic charter school

Attorney General Gentner Drummond wants to prevent taxpayer money from going to St. Isidore of Seville Virtual Catholic Charter School

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Yesterday, in what may appear to be a rather shocking move, Oklahoma’s Attorney General Gentner Drummond filed a lawsuit to prevent the state from using taxpayer money to prop up the nation’s first religious charter school. (It comes nearly three months after a coalition of church/state separation groups filed a similar lawsuit.)

“The board members who approved this contract have violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars,” Drummond said.

“Today, Oklahomans are being compelled to fund Catholicism. Because of the legal precedent created by the Board’s actions, tomorrow 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. As the defender of Oklahoma’s religious freedoms, I am prepared to litigate this issue to the United States Supreme Court if that’s what is required to protect our Constitutional rights.”

Okay, so it’s not exactly a tactful statement, but what else would you expect. The unnecessary pivot to “Sharia law” aside, Drummond is right on principle. It’s exactly the argument civil rights groups have been making since the taxpayer-funded religious school became a possibility.

Oklahoma Attorney General Gentner Drummond (screenshot via YouTube)

The lawsuit, which was filed directly with the Oklahoma Supreme Court, notes that the state constitution prohibits “sectarian control” of public schools. It also notes that using taxpayer dollars to fund a Catholic education violates the Establishment Clause in the U.S. Constitution. 

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.

That’s absolutely the biggest concern here. Once that floodgate opens, it won’t stop with one religious school and it won’t end at Oklahoma’s borders. And if taxpayers have to pay for private religious schools, that means even less money available for public education.

In a statement, OK Gov. Kevin Stitt called the lawsuit a “political stunt”:

“AG Drummond seems to lack any firm grasp on the constitutional principle of religious freedom and masks his disdain for the Catholics’ pursuit by obsessing over non-existent schools that don’t neatly align with his religious preference,” Stitt said in a statement.

State Superintendent of Public Instruction Ryan Walters echoed those remarks in his own statement, saying for some bizarre reason, “atheism should not be the state-sponsored religion.” (Spoiler: It is not.) He also called Drummond’s lawsuit “misguided.”

It’s hardly surprisingly that Walters and Stitt have no concept of church/state separation, much less how courts have interpreted the Establishment Clause for decades now.

To make sense of what’s happening here, it helps to know how this religious school got a green light in the first place.

The Catholic school was approved in June

Back in June, two months after Oklahoma's Statewide Virtual Charter School Board voted unanimously to “disapprove” an application from St. Isidore of Seville Virtual Catholic Charter School, the same board voted 3-2 in favor of moving forward with the school.

One of the “Yes” votes came from a new member of the board, Brian Bobek, who was appointed to the group just days earlier, by Republican House Speaker Charles McCall. (At the beginning of the meeting, Bobek was asked by the board’s chair to abstain from the vote to “avoid the appearance of political manipulation,” but that didn’t happen; Bobek was arguably installed so he could be the deciding vote.)

Despite the board’s lawyers openly saying this could raise legal problems, the state gave the okay for the creation of the first taxpayer-funded religious charter school in the country. The immediate concern from church/state separation groups was that conservative legal groups would quickly attempt to establish similar taxpayer-funded indoctrination camps in other places using this one as precedent.

The problems with a taxpayer-funded Catholic school

Unlike public schools, this Catholic school would not require teachers to be certified, would not have to accept openly LGBTQ teachers, and would explicitly promote Catholic doctrine during school hours. There’s also the possibility that students who become pregnant could get expelled—along with trans students just for existing—and that sex education would be omitted from the curriculum. In addition, this kind of school wouldn’t have the resources to take on special needs students. (“That is something we will need to develop,” said Lara Schuler, senior director of Catholic education at the Archdiocese of Oklahoma City, during a presentation in February.)

All the while, taxpayers would be footing the bill.

Earlier this year, Brett Farley, the executive director of the Catholic Conference of Oklahoma, refused to address any of those concerns. He said that those were all hypothetical situations that he couldn’t speak to since there were no actual cases in front of him. (Catholic doctrine, for what it’s worth, has no problem addressing hypothetical sins.)

The proposed K-12 school would theoretically help Catholics in rural parts of Oklahoma obtain a faith-based education. The Supreme Court has already said that if taxpayer dollars are available for general programs, an institution can’t be excluded from consideration just because it’s religious. The Catholic Church used that argument to justify the creation of this charter school.

By doing so, they fully ignored the will of Oklahoma’s voters who rejected a 2016 ballot measure that would have repealed the Blaine Amendment—the part of the State Constitution that bans public money being used for religious purposes. (They rejected that measure on the same night Donald Trump was elected.)

What Oklahoma’s attorneys general have said about the Catholic school

But it’s not like the Catholic Church was acting on its own here. They had the support of the former execution-obsessed state attorney general John O’Connor, who wrote in a (non-binding) opinion last December that everything would be fine if the state approved the charter school:

But late last year before leaving office, then-Oklahoma Attorney General John O’Connor issued an advisory opinion that the state’s current ban on publicly funded charter schools being operated by sectarian and religious organizations could be a violation of the U.S. Constitution’s First Amendment “and therefore should not be enforced.”

That was the legal defense exploited by the Catholics behind this school.

After O’Connor issued his advisory opinion, Americans United for Separation of Church and State urged the Oklahoma Statewide Virtual Charter School Board to disregard everything he said:

At heart, the AG opinion misunderstands the nature of charter schools. “Reclassifying charter schools as private actors would be a sea change in the law that would upend the entire educational landscape in Oklahoma. It has always been the understanding of lawmakers, the government, and charter schools themselves that they are public schools and subject to the U.S. Constitution,” AU’s letter explains. AU also notes that a 2007 Oklahoma Attorney General opinion affirmed that charter schools are “part of the public school system.”

O’Connor’s misguided beliefs were echoed by the State Superintendent of Public Instruction Walters, a Christian Nationalist. Gov. Stitt also supported the proposal.

For what it’s worth, Attorney General Drummond, the Republican who defeated O’Connor in the 2022 primary and later won the general election, took AU’s side on this one long before he filed his lawsuit. In February, Drummond formally withdrew O’Connor’s opinion:

“Religious liberty is one of our most fundamental freedoms,” Drummond wrote. “It allows us to worship according to our faith, and to be free from any duty that may conflict with our faith. The Opinion as issued by my predecessor misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”

…

“While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the … application will compel approval of similar applications by all faiths,” Drummond wrote. “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.”

Oklahoma’s attorney general had it exactly right.

The application was discussed during a pivotal board meeting in April

On April 11, during a meeting that got plenty of media attention, the Statewide Virtual Charter School Board expressed concerns about the conflicting statements from the attorneys general, especially at the idea that they could be sued in a personal capacity for doing something that violates the law.

After hours of discussion, they voted to reject the application as is and give the Catholic school board members another month to address a number of concerns—both religious and non-religious—about their proposal. Among the concerns: how its board was managed, how the school would address special education, and why the Catholics filing the application believed they were on the right side of the law on this matter.

That vote, however, just delayed the inevitable, albeit for good reason.

The big concern was that there would absolutely be lawsuits over this school because, despite all its supporters’ earlier claims, the charter school was not analogous to the situation in Maine (that the Supreme Court said was legal). This quite literally violated state law. It would also open the floodgates to other religious schools that cared less about giving children a comprehensive education and more about making sure those kids were fully indoctrinated with one group’s propaganda. (During the public comments portion of April’s meeting, one speaker warned the board that allowing a Catholic charter school to move forward could put them in a bind if The Satanic Temple made a similar request in the future.)

There was a more general problem here, too: Public schools and the students in them would inevitably suffer as more funding got whittled away for religious factories. The state’s already struggling public education system couldn’t afford to lose more resources.

This also raised another question: If having this school was so damn important to the Archdiocese of Oklahoma City, why didn’t they just open up a private school? The Catholic Church is many things, but cash-deprived isn’t one of them. Schuler said months ago that that they simply couldn’t compete against other free virtual schools that received taxpayer funding. But traditional public schools receive the same kind of dollars and Catholics have no problem playing in that arena, so the argument didn’t carry much weight. If they wanted public money to create the school, it seemed reasonable to demand that they play by public rules.

During that April meeting, all of the people who delivered public comments—every single one of them—spoke against the proposal. They were hardly atheist zealots; many were religious leaders who supported church/state separation and strong public education. The only real defender of the school was Ryan Walters, the State Superintendent of Public Instruction:

… We have here an application to provide more opportunities for kids and to show Oklahoma is a state that truly values religious freedom. I know that you all have heard from a lot of different folks, and you’ve heard from some radical leftists that their hatred for the Catholic Church blinds them [from] doing what’s best for kids. Their hatred for the Catholic Church has caused them to attack our very foundation of religious liberties in attacking this school…

Even the board chair responded to that rant by saying he didn’t hear from any “radical” leftists, or hear any attacks against the Catholic Church, during the public comments part of the meeting. It was a polite way for him to tell Walters to shut up with his extreme conservative rhetoric.

Why the charter school was approved

As predicted, though, the April board meeting was bound to become moot after Republicans changed its makeup. Just before the June meeting, retired superintendent Barry Beauchamp, one of the five board members, was finally replaced. Beauchamp’s term had expired but he had been sitting on the board until someone else could take his place, and the House Speaker made that happen just in time for the next vote.

There was never going to be any question about how the replacement would vote given his career trajectory:

Bobek is an Oklahoma City businessman who previously served nearly four years on the State Board of Education and the State Board of Career and Technology Education through appointments by Gov. Kevin Stitt.

When it finally came time to vote, Bobek, Nellie Tayloe Sanders, and Dr. Scott Strawn all voted to approve the charter school. Only Dr. Robert Franklin and Willian Pearson said no. Franklin said at the end of the meeting he would be resigning from the board. Hard to argue with that; his vote was no longer needed when there were enough Republican appointees to override any sensible pushback.

Gov. Stitt also soon signed into law Senate Bill 516, which would abolish the entire Statewide Virtual Charter School Board by 2024 and replace it with a new board covering all charter schools. All appointees to that board would presumably be even more closely aligned with the state’s Republican leaders. (Ironically, the law says “A charter school shall be nonsectarian.” Too bad no one seemed to care.)

This was a disastrous decision that experts knew would create far more problems than it would solve. There was no good reason, ethically or legally, to use taxpayer dollars to fund private religious education. Even if the proposed charter school did everything right, its desire to promote Catholicism should have been a non-starter for state officials.

Given that charter schools “make up 8 percent of public schools in the United States,” according to the New York Times, the existence of one faith-based, taxpayer-funded charter school threatened public education funding all across the country. This issue wasn’t going to go away.

The lawsuit rightly threatens the future of the Catholic charter school

In early August, Americans United for Separation of Church and State, the American Civil Liberties Union (ACLU), the Education Law Center, and the Freedom From Religion Foundation announced a lawsuit to block state funding of the Catholic charter school in order to stop a “full-on assault on church-state separation and public education.”

They represented nine plaintiffs who are “faith leaders, public school parents, and public education advocates.” All of them, along with the Oklahoma Parent Legislative Action Committee (OKPLAC), oppose the school’s discrimination on the basis of religion and LGBTQ status, the school’s failure to “adequately serve students with disabilities,” and the religious indoctrination that would inevitably occur there. All of these issues violated the state’s own laws, they argued. They also said that the state requires charter schools and their boards to be run independently from their educational management organizations, yet this school would be operated by the Archdiocese of Oklahoma City.

The 70-page lawsuit named as defendants all five voting members of the Statewide Virtual Charter School Board, the board itself, the state’s Department of Education, Ryan Walters, and the Catholic charter school. Because AG Drummond wanted nothing to do with this idiocy, the right-wing legal group Alliance Defending Freedom is representing all of them.

In a guest essay for the New York Times, Americans United for Separation of Church and State’s President and CEO Rachel Laser explained why this lawsuit was necessary:

Indeed, it’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families than the state establishing a supposedly public school that is run as a religious school. Forcing taxpayers to fund religion, let alone a religion not their own, violates the Oklahoma Constitution’s explicit command that no public money or property “shall ever” be used to benefit or support religion. It’s exactly what Thomas Jefferson labeled “sinful and tyrannical.”

Ryan Walters responded to the lawsuit with his predictable blend of paranoia and lies, calling the case an example of “religious persecution”:

“It is time to end atheism as the state sponsored religion,” Walters said. “Suing and targeting the Catholic Virtual Charter School is religious persecution because of one’s faith, which is the very reason that religious freedom is constitutionally protected. A warped perversion of history has created a modern day concept that all religious freedom is driven from the classrooms. I will always side for an individual’s right to choose religious freedom in education.”

He ignored the fact that several of the plaintiffs are religious leaders themselves and literally no one was calling for atheism to be taught in any school. Walters was lying because Christian Nationalists believe lying in the name of Jesus is always acceptable.

Meanwhile, the Catholic Conference of Oklahoma knew this lawsuit was coming and expressed confidence that the courts would eventually rule in their favor. They’re hoping this gets all the way up to the right-wing Supreme Court for obvious reasons, though when the facts of the case are this skewed in favor of the plaintiffs and so far removed from charter school cases the Court has already seen, it might be a tough sell for even some of those conservative justices. (But no one should put it past them.)

For what it’s worth, the church/state groups issued a joint statement celebrating Drummond’s lawsuit, saying they welcome his involvement in the case:

“We applaud Attorney General Drummond for his efforts to protect church-state separation and public education in Oklahoma. The law is clear: Charter schools are public schools that must be secular and serve all students. St. Isidore of Seville Catholic Virtual School plans to discriminate against students, families, and staff and indoctrinate students into one religion. Allowing a religious public charter school like St. Isidore to operate would be a sea change for our democracy.

The existence of one faith-based, taxpayer-funded charter school threatens public education funding all across the country. It’s better to stop this one through the courts before the problem spreads elsewhere.

Without court intervention, the school is scheduled to open in 2024. Over the first five years, it’s expected to cost taxpayers more than $26 million.

(Large portions of this article were published earlier)

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