Religious people have a right to an education as much as anyone else – but that right is under threat in Oklahoma. The ACLU is leading a coalition of organizations in a lawsuit to stop funding for the state’s first religious charter school, St. Isidore of Seville Catholic Virtual School. The school’s charter was approved by the Oklahoma Statewide Virtual Charter School Board in June and will join more than 20 other charter schools in the state if allowed to open next year.
The ACLU says they are suing to stop this from happening because it would “eviscerate” the line separating church and state and “unlawfully discriminate” by teaching based on the Catholic faith as what the ACLU considers a “government institution.” It is the last phrase that is up for debate – and which the courts will have to decide. Many do not consider charter schools to be government institutions, because they are privately run. Families have the option to go there – and the choice to go elsewhere – so they have more leeway in being specialized in what they teach.
As Oklahoma Attorney General John O’Connor wrote in 2022, “The state cannot engage private organizations to ‘promote a diversity of educational choices,’ … and then decide that any kind of religion is the wrong kind of diversity. That’s not how the First Amendment works.” Law professor Nicole Stelle Garnett built on this, writing “Traditional public schools may not embrace religion because they are government schools. They are operated and controlled by school districts, which are government entities.
“But charter schools are not government schools. Charter laws enlist private organizations to run schools, and give them substantial operational autonomy in order to foster educational pluralism. And, charter schools, like private schools participating in parental choice programs, are schools of choice. The only students who will be educated by St. Isidore of Seville Catholic Virtual School are students whose families choose the school for them.”
Thirty-seven states have so-called “Blaine Amendments” on the books – outdated, anti-Catholic legislation that allows for religious discrimination when it comes to distributing taxpayer funds in education or to charitable organizations. Blaine Amendments violate our First Amendment’s Free Exercise Clause by singling out and excluding religious groups from neutral public aid programs.
Overturning state Blaine Amendments is a necessary step in bringing policies in line with non-discriminatory First Amendment principles. Every school and charity deserves equal access and consideration when it comes to federal and state funding, regardless of religious affiliation. Excluding them only hurts the people who need them the most.
Fortunately, progress is being made. In two recent Supreme Court cases, the courts ruled in favor of protecting religious expression while still offering the same funding options to schools that were excluded from benefits by Blaine Amendments. In Maine, three moms sued the state because it refused funding for their kids to go to a religious school. In Montana, the Supreme Court reversed a state Supreme Court ruling that removed religious school options from a school voucher program.
However, as progress is made, those who prefer discriminatory practices will fight even harder to keep them in place. That’s what this case comes down to – discrimination against religious education, and whether states are going to allow it. So far, Oklahoma has not. We hope they will continue to do the right thing.
