June 23, 2023

Jan Resseger: New Oklahoma Religious Charter School Will Once Again Test the Constitution’s Protection of the Separation of Church and State

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Oklahoma has taken the next step in breaking down the wall between church and state. Jan Resseger looks at what exactly is going on. Reposted by permission.  

Charter schools are privately operated, publicly funded schools that serve children in grades K-12 in 45 states.  While charter schools may use private philanthropic grants to fund some of their programming, the bulk of their funding is public. They are established in enabling laws passed by state legislatures, and they operate under charter school rules again set up by the state legislatures.  In other words, they are public schools.

The New York Times‘ Sarah Mervosh describes the approval on Monday of a new charter school, just established in Oklahoma. The school violates the concept of charter schools as public institutions because it is explicitly religious. It violates the principle of separation of church and state as defined in Oklahoma’s state constitution: “The nation’s first religious charter school was approved in Oklahoma on Monday, handing a victory to Christian conservatives, but opening the door to a constitutional battle over whether taxpayer dollars can directly fund religious schools. The online school, St. Isidore of Seville Catholic Virtual School, would be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, with religious teachings embedded in the curriculum, including in math and reading. Yet as a charter school—a type of public school that is independently managed—it would be funded by taxpayer dollars.”

Politico‘s Juan Perez, Jr. explains: “Oklahoma’s Constitution prohibits the use of public funds for religious or sectarian purposes.”  Perez reports that even Nina Rees, president of the National Alliance for Public Charter Schools, opposes the opening of this explicitly religious charter school: “This decision runs afoul of state law and the U.S. Constitution. All charter schools are public schools, and as such must be non-sectarian.”

The establishment of the St. Isidore of Seville Catholic Virtual School has been a matter of contentious debate all spring. A state body, the Oklahoma Statewide Virtual Charter School Board, approved the school after Governor Kevin Stitt, a supporter of religious charter schools, appointed a new member to the board last Friday, but according to Chalkbeat‘s Matt Barnum and Cara Fitzpatrick, that board has not always supported the idea of a religious charter school: “Last month, board members unanimously rejected the school’s initial proposal, citing a number of issues including constitutional questions about the separation of church and state.”  The Washington Post’s Laura Meckler reports: “Oklahoma’s Republican Attorney General Gentner Drummond also decried the decision and said it could open the state to costly litigation.”

More than 20 years ago, the Institute for Justice recruited plaintiffs to file a lawsuit for the purpose of testing the constitutionality of the Cleveland voucher program, which was designed to award vouchers to religious  as well as other private schools. The U.S. Supreme Court, in Zelman v. Simmons Harris, declared that if the voucher was awarded to the parent who could make a choice, not to the religious school itself, vouchers would pass U.S. Constitutional muster.  Meckler summarizes some recent history about a series of legal challenges brought for the purpose of progressively weakening the protection of the separation of church and state: ”The new Catholic school, which expects to serve 500 students initially, was created in part to provide Catholic education for students in rural areas that do not have a private Catholic school nearby. But it also was set up intentionally to test the legal limits of taxpayer funding for religious schools. The move is part of a conservative push to expand the boundaries of school choice… A drive to break down the once-solid wall between public funding and religious education has already made significant gains. Over the past six years, a conservative U.S. Supreme Court has issued three rulings that religious institutions could not be excluded from taxpayer-funded programs that were available to others. In a 2017 case, the court ruled that a church-run preschool in Missouri was entitled to a state grant that funded playgrounds. In 2020, the court ruled that Montana could allow parents to use private school vouchers at religious and secular schools. And last year, the court said that a Maine voucher program that sent rural students to private high schools had to be open to religious schools.”

While in the early days, these cases were decided on the basis of the First Amendment’s “establishment clause”—that public funds may not be used to establish religion, today’s U.S. Supreme Court is basing religious liberty decisions on the First Amendment’s “free exercise clause”—that the state may not violate anyone’s practice of religion by excluding a church’s or synagogue’s or mosque’s right to establish a religious school by having access to the same government school funding that any secular institution can qualify for.  In upcoming weeks and months we will hear much deeper exploration of these legal issues as they apply to the public funding of Oklahoma’s St. Isidore of Seville Catholic Virtual School.

It is important to recognize that many faith communities, including many Christian communions, Jewish synagogues, and Islamic organizations in the United States are among the primary defenders of religious liberty.  These religious communities emphatically support the separation of church and state in public schools precisely because their members do not want public school personnel imposing religious beliefs on their own or anyone’s children.  Many faith communions in the United States partner with Americans United for Separation of Church and State, whose President and CEO, Rachel Laser issued the following statement after the St. Isidore of Seville Catholic Virtual Charter School was approved on June 5:

“It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public school families than the state establishing the nation’s first religious public charter school… State and federal law are clear: Charter schools are public schools that must be secular and open to all students. No public school family should fear that their child will be required by charter schools to take theology classes or be expelled for failing to conform to religious doctrines. And the government should never force anyone to fund religious education. In a country built on the principle of separation of church and state, public schools must never be allowed to become Sunday schools.”

Ironically, although Oklahoma’s St. Isidore of Seville Catholic Virtual School is the first explicitly religious Christian charter school established in the United States, it is not the first Christian charter school.  As we all know, charter schools are regulated and operated under under state law (even the schools with federal Charter Schools Program grants). Oversight has been outrageously lax across many states.  This morning the Network for Public Education released A Sharp Turn Right: A New Breed of Charter Schools Delivers the Conservative Agenda, a new report about charter schools and chains of charter schools that provide a Christian curriculum and in many cases promote Christian nationalism. NPE’s new report explores charter school networks including  Hillsdale Classical Charter Schools, Ascent Classical Academies, Great Hearts’ Classical Academies, and American Leadership Academy as examples of charter schools which promote Christianity without calling attention to the religious bias of their curriculum:

“Our investigation found that American Leadership Academy, Great Hearts, and other Christian nationalist charter schools masquerade as public schools but operate like right-wing faith groups. They blur and even erase the line between church and state.” “Forty-seven percent of the schools we identified opened since the inauguration of Donald Trump in 2017.”  The Network for Public Education even exposes one explicitly religious charter school which received a large grant from the federal Charter Schools Program (CSP) in 2019: “It was during (Betsy DeVos’s) tenure as Secretary of Education that Responsive Ed, a chain whose schools taught creationism, received CSP grants totaling $55,750,201—one awarded in 2019 and a second in 2020… Responsive Ed is headquartered in Texas, a state that has long looked the other way when it comes to the religiosity of its charter schools.”

The Network for Public Education’s new A Sharp Turn Right report is timely.  I urge you to read the report to learn about yet another abuse of the public good within the charter school sector.

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